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>        > 


REAL    PROPE  R  T  Y, 


IN 


ITS   PRESENT   STATE; 

PBACTICALLT  ARRANGED  AND  DiaESTED 

IN  ALL  ITS  BEANCHES, 

INCLUDING 

THE  VERY  LiVTEST  DECISIONS  OF  THE  COURTS. 

BY 

GEORGE    CRABB,   Esq., 

BARRISTER-AT-LAW. 


ITH   NOTES   AND    REFERENCES    TO   AMERICAN    DECISIONS   BY 
A   MEMBER   OF   THE   PHILADELPHIA   BAR. 


VOL.  I. 


PHILADELPHIA: 

T.     &    J.    W.    JOHNSON, 

LAW  BOOKSELLERS,  PUBLISHERS,  AND  IMPORTERS, 

197   CHESNUT   STREET. 

1846. 


'  '  "^  I 

■  c     c    c 


<      (    f    f 

t    «-«    e     * 
«    c     •        « 
c       e    «e* 

c  c    c 


T 


^ 


P  R  E  F  A  C  E. 

This  Work,  which  has  employed  the  Author's  leisure  time  for  upwards  of 
ten  years,  is  distinguished  from  every  other  in  several  particulars. 

In  the  first  place,  it  is  confined  to  the  Law  in  its  Present  State.  What- 
ever is  mere  matter  of  history  has  been  excluded  ;  and  that  which  has  been 
abolished  by  statute,  but  remains  in  force  in  respect  of  past  transactions,  has 
been  briefly  touched  upon. 

In  the  next  place,  it  is  confined  to  the  Law  as  settled  by  the  Decisions  of 
the  Courts,  so  far  as  any  thing  in  law  can  be  considered  as  settled.  That 
which  is  confessedly  not  settled  has  been  noticed,  so  as  to  show  the  state  of 
the  Law,  without  entering  into  discussions  on  doubtful  points,  which  may 
be  found  treated  of  at  large  in  other  treatises. 

By  thus  confining  the  Work  to  what  is  wanted  in  ordinary  practice,  the 
Author  has  been  enabled,  without  swelling  it  to  an  immoderate  size,  to 
embrace  the  whole  of  the  Law  of  Real  Property,  of  which  particular  parts 
only  are  considered  in  other  works. 

As,  in  a  Treatise  professing  to  give  a  connected  view  of  a  subject,  arrange- 
ment is  obviously  an  essential  ingredient,  this  Work  is  on  that  score  also 
(whether  for  the  better  or  the  worse)  distinguishable  from  others.  Except 
as  regards  the  general  outlines,  in  which  the  plan  of  Sir  Matthew  Hale 
(afterwards  adopted  by  Sir  William  Blackstone)  has  been  partially  followed, 
the  endeavour  has  been  to  make  all  the  matter  follow  in  such  order  as  shall 
serve  to  give  a  clear  and  distinct  view  of  the  several  points,  and  their  con- 
sequent bearings  on  the  subject  in  question. 

The  Statutes  on  the  Transfer  of  Property,  though  passed  late  in  the 
Session,  have  been  noticed  in  their  proper  places,  as  also  the  latest  Decisions, 
including  those  of  the  present  year  until  the  closing  of  the  Courts. 

What  relates  to  the  subject  of  Conveyancing,  and  to  the  Statutory  Pro- 
visions concerning  Real  Property,  is  noticed  by  a  reference  to  the  Author's 
"  Precedents  in  Conveyancing,"  and  "  Digest  and  Index  of  all  the  Statutes." 


16,  Southampton  Buildings, 
Chancery  Lane. 


729265 


•    •• 

•   •  • 

•  •  »  • 


*  •      * 


TABLE    OP   CONTENTS. 


BOOK    1. 

NATURE   OF    REAL   PROPERTY   IN   GENERAL. 

CHAPTER  L 
DISTINCTION  BETWEEN  REALTY  AND  PERSONALTY. 


SECT.  I. 

DEVOLUTION  OF  REALTY  AND  PEESONALTY. 


Chattels  Real 


5  7 


Chattels  Personal  .  .  .  •  1^ 

SECT.  II. 
LIABILITY  FOR  THE  PAYMENT  OF  DEBT3. 


33 

37 


Real  Assets  .  .  .  •  • 

Personal  Assets  .  .  •  •  ^ 

Fund  for  the  Payment  of  Debts  .  •  '  dt 

Personal  Estate  the  primary  Fund  .  •  •  ^^ 

Order  of  paying' Debts  out  of  Realty 
Marshallino-  Assets  .  .  •  • 


50 
51 


SECT.  III. 
RECIPROCAL  CONVERSION  OF  REALTY  INTO  PERSONALTY  AND  VICE  VERSA. 

Conversion  of  Money  into  Land  .  •  '  rq 

Conversion  of  Land  into  Money  .  •  •  |°^ 

Conversion  in  Cases  of  Infants,  Lunatics,  and  Partners        .  •  <o 

SECT.  IV. 

MISCELLANEOUS  POINTS  OF  DISTINCTION  BETWEEN  REALTY  AND  PERSONALTY. 

Rights  and  Liabilities  of  the  Heir                        .  •                    '            ro 

Matters  affecting  the  Heir  and  Others  .                     •                      °* 

What  deemed  Interests  in  Land,  or  otherwise  .                    •>            ^^ 

Statutes  relating  to  Property                    ^  .                   •                     °'* 


VI  CONTENTS. 

CHAPTER  II. 

CORPOREAL  HEREDITAMENTS. 


SECT.  I. 

LAND. 

What  passes  by  the  Name  of  Land  .  .         5  86 

By  what  Names  the  Soil  will  pass  .  .  67 

SECT.  II. 

MANORS. 

Definition  of  a  Manor,  &c.  .  .  .  .83 

SECT.  III. 

HOUSES. 

Protected  by  the  Law,  &c.  .  .  .69 

SECT.  IV. 

CnURCHES. 

Wliat  comprehended  under  the  Word  "  Church,"  &.c.  .  90 

SECT.  V. 

MILLS. 

Suit  at  Mill,  «fec.  .  .  .  .  .93 

SECT.  VI. 

COMMONS  AND  WASTE  LANDS. 

Distinction  between  Commons  and  Waste  Lands,  &c.  .  .  9-4 

SECT.  VII. 

WOODS  AND  TREES. 

Freehold  in  Trees,  &.c.  .  .  .  .96 

SECT.  VIII. 

FORESTS  AND  CHASES,  ETC. 

Distinction  between  a  Forest,  Chase,  and  Park  .  .  97 

SECT.  IX. 

MINES  AND  MINERALS. 

Property  in  Mines       ....  98 

Grant  of  Mines                        .                     .                     .                     .  99 

Rigl)t  to  worker  open  Mines          .                    .  100 

Rateability  of  Mines              ....  101 


CONTENTS. 


TU 


Public  Ways 
Private  Ways 


The  Sea 
Public  Rivers 
Private  Rivers 
Canals,  Docks,  &c. 
Ponds,  Decoys,  &,c. 
Sewers 


SECT.  X. 

WAYS. 


SECT.  XI. 

WATER. 


1}  102 
103 


105 
107 
108 
110 
111 
113 


CHAPTER  III. 

INCORPOREAL  HEREDITAMENTS. 


SECT.  I. 

OP  INCOKPOREAL  HEREDITAMENTS  IN  GENERAL. 

What  is  an  Incorporeal  Hereditament,  &c. 

SECT.  II. 

ADVOWSONS. 

iVature  and  Properties  of  Advowsons 

Different  Kinds  of  Advowsons 

Presentation  .... 

Grant  of  an  Advovvson  .... 

How  it  passes  in  a  Grant 

Appropriation  and  Impropriation 

Incidents  to  an  Advowson 

SECT.  III. 

TITHES. 

Nature,  &c.,  of  Tithes 

Law  of  Tithes  and  Rent-charges  under-  the  Tithes  Commutation  Acts 

SECT.  IV. 
RENT. 

Nature  of  Rent,  and  its  different  Kinds 

Creation  and  Reservation 

What  Estates  may  be  had  in  a  Rent 

Payment  of  Rent  .... 

Extinguishment  and  Suspension  of  Rent 

Apportionment  of  Rent  .... 

Recovery  of  Rent         .... 


115 


117 
119 
120 
126 

ib. 

129,  130 

131 


1.3.3 
141 


150 
157 
178 
191 
208 
210 
221 


VUl  C  O  N  T  E  K  T  S.  ^ 

SECT.  V. 
A:fNriTIE3  OR  RE>-T-CHARGE5 

How  an  Annuity  may  be  granted  or  created      .                    .                    •  {  260 

Estate  in  an  Annuity              ....  262 

Apportionment  of  an  Annuity          ....  264 

Recovery  of  an  Annuity        ....  266 

SECT.  VI. 

BIGHT  OF  C03I3ION. 

Nature  of  a  Right  of  Common,  and  its  different  Kinds  .  .  267 

Incidents  to  a  Right  of  Common  .  .  ,  307 

314 
329 

•  «  t  OOfJ 

335 
347 
348 


Interests  of  the  Lord  and  Commoner 
Alienation  of  Right  of  Common 
Apportionment  of  Common 
Extinguishment  of  Common 
Revival  of  Right  of  Common 
Injuries  to  Right  of  Common 


SECT.  VII. 

RIGHT  OF  WAV. 

Nature  of  the  Right,  and  its  Extent                   .                    .  .          361 

How  claimed                           ....  363 

User  of  the  Right        .                    .                    .                    .  .376 

How  lost,  destroyed,  or  extinguished         .                     .                     .  382 

Suspension  and  Revival  of  the  Right                  .                     .  .           391 

Disturbance  or  Interruption  of  the  Right                     .                    .  393 

SECT.  VIII. 

RIGHT  TO  WATER  AND  WATERCOURSES. 

Nature  and  Extent  of  the  Right     ....  399 

How  claimed      .....  411 

How  used                     .....  418 

How  lost             .....  424 

Disturbance  of  the  Right,  and  the  Remedies     .                   .  .          427 

SECT.  IX. 

RIGHT  TO  LIGHT  AND  AIR. 

Nature  and  Extent  of  the  Right      ....  445 

How  claimed      .....  450 

How  used                      .....  455 

How  lost             .....  459 

Disturbance  of  the  Right,  and  the  Remedies      .                    .  .          463 

SECT.  X. 

RIGHT  TO  PEWS  AND  OTHER  EASEMENTS. 

How  Right  to  Pews  may  be  claimed                   .                     .  .           481 

Disturbance  of  the  Right,  and  the  Remedies                 .                    .  404 

Right  of  Burial             .                     •                     •                     •  '           SS 

Right  to  Support  from  Land  or  Buildings                      .                     .  500 

Right  to  have  Fences  maintained                        .                     •  •           508 

Right  to  hang  Linen  to  dry  over  the  Soil  of  another                       .  510 

Right  to  Land  with  Nets,  &,c.        .                   .                   •  •          511 


CONTENTS.  IS 

SECT.  XL 
OFFICES. 

Nature  of  an  OfEce,  and  the  different  Kinds      .                   .  .J  530 

How  created       .                     .                     .                     •                     •  o34 

How  granted                 .                     .                     .                     •  .           536 

Who  may  hold  Offices           ....  554 

Execution  of  an  Office                     ....  560 

What  Estates  may  be  had  in  an  Office     .                    .                    .  570 

How  forfeited  or  lost    .....  576 

Disturbance  of  an  Office        ....  595 

SECT.  XII. 

DIG>'ITIES. 

How  distinguished         .....        599 

How  claimed  or  created         ....  600 

What  Estates  may  be  had  in  a  Dignity              .                    .  .          605 

How  lost  or  recovered           ....  613 

SECT.  XIII. 

FRANCHISES. 

The  Nature  of  a  Franchise,  and  its  different  Kinds                .  .          623 

How  claimed      .                    .                    .                    .                   ~.  729 

How  lost  or  destroyed                      .                   .                  .  .731 


BOOK    II. 

OF   TENURES. 


CHAPTER   I. 
OF  THE  NATURE  OF  TENURES  IN  GENERAL.  733 


CHAPTER  II. 
MODERN  FREE  TENURES. 


SECT.  I. 

SOCAGE  TENURE,  AND  ITS  INCIDENTS  .  ,  .741 

SECT.  II. 
GRAND  AND  PETTY  SERJEANTRY  .  .  .         747 

SECT.  III. 
TENURE  IN  BURGAGE  ....        749 


CONTENTS. 


SECT.  IV. 
TENURE  IN  GAVELKIND 

SECT.  V. 
TENURE  IN  FRANKALMOIGNE 


§    753 


761 


CHAPTER  III. 
COPYHOLD  AND  OTHER  BASE  TENURES. 


SECT.  I. 
C0M3I0N  COPYHOLDS. 

What  is  a  Copyhold,  and  the  Requisites  thereto 

Incidents  to  Copyholds 

Demise  of  Copyholds 

Rights  and  Interests  of  Lord  and  Tenant 

Estates  in  Copyholds 

Alienation  of  Copyholds 

Extinguishment  of  Copyhold  Tenure 

Injuries  in  respect  of  Copyholds,  and  their  Remedies  . 

SECT.  II. 

PRIVILEGED  COPYHOLDS. 

Customary  Freeholds 
Ancient  Demesne 


765 
770 
819 

845 

2354 

2440 

864 

901 


920 
924 


BOOK    III. 

OF   ESTATES. 


ESTATES  IN  GENERAL. 


CHAPTER  I. 


943 


CHAPTER  II. 


ESTATE  IN  FEE  SIMPLE. 

What  is  a  Fee  Simple 

How  the  Fee  may  be  divided 

By  what  words  a  Fee  Simple  may  be  created    . 

In  what  Things  an  Estate  in  Fee  Simple  may  be  had 

Incidents  to  an  Estate  in  Fee  Simple 


948 
952 
955 
964 
965 


CONTENTS.  » 

CHAPTER  in. 

ESTATE  IN  FEE  TAIL. 

What  is  a  Fee  Tail                        .                    .                    .  .         J  970 

Thedifferent  Kinds  of  Estates  Tail                               .                     .  972 

How  created                .                     .                    .                     •  .           975 

What  Things  may  be  entailed                   .                     .                    .  992 

Interest  and  Power  of  Tenant  in  Tail                 .                     .  .           999 

Issue  in  Tail        .                     .                    ,                    ,                    .  1006 
Incidents  to  an  Estate  Tail              ....         1012 

How  lost            .....  lUIG 


CHAPTER  IV. 

ESTATES  FOR  LIFE. 


SECT.  I. 
ESTATE  FOR  LIFE. 

Its  Nature  and  different  Kinds      ....  1020 

How  created                         ....  1023 

Of  what  Things  there  may  be  an  Estate  for  Life                 .  .          1032 

Rights  and  Liabilities  of  Tenant  for  Life                     .  .                     1033 

Incidents  to  an  Estate  for  Life       .                     .                     .  .1041 

How  an  Estate  for  Life  may  be  lost       .                     .  .                     1060 

Injuries  relating  to  an  Estate  for  Life              .                    .  .          1065 

SECT.  II. 

ESTATE  TAIL  AFTER  POSSIBILITY  OF  ISSUE  EXTINCT. 

What  it  is                  .                    .                    .                    .  .           1066 

What  it  has  in  common  with  an  Estate  Tail               .  .                     106S 

What  it  has  in  conimoa  with  an  Estate  for  Life                    •  .           1072 

SECT.  III. 

ESTATE  BY  THE  CURTESY  OF  ENGLAND. 

Nature  of  the  Estate,  and  the  Requisites  thereto                 .  .          1074 

Who  may  be  Tenants  by  the  Curtesy                          .  .                     1093 

Of  what  Estates  there  may  be  Tenants  by  the  Curtesy       .  .           1099 

Of  what  Things  there  may  be  an  Estate  by  the  Curtesy  .                     1104 

Incidents  to  an  Estate  by  Curtesy                 .                     .  ,           1110 

How  an  Estate  by  Curtesy  may  be  lost                       .  .                    1113 

SECT.  IV. 

ESTATE  IN  DOWER. 

The  Nature  and  different  Kinds  of  this  Estate,  and  the  Requisites  thereto      1117 

Who  may  be  endowed,  or  otherwise                .                    .  .          1126 


xu 


CONTENTS. 


Of  what  Estates  there  may  be  Dower    .  , 

Of  what  Things  there  may  be  Dower  . 

Assignment  of  Dower  .  .  . 

Rights,  Interests  and  Liabilities  of  Tenant  in  Dower 
How  Dower  may  be  lost      .  .  . 

Recovery  of  Dower    . 

SECT.  T. 

ESTATE  IX  JOIXTrKE. 

How  a  Jointure  is  created,  and  the  Requisites  thereto 

Equitable  Jointures 

How  a  Jointress  is  aided  in  Equity 

Interest  of  the  Jointress,  and  Power  over  her  Estate 

How  an  Estate  in  Jointure  may  be  forfeited  or  lost 


5  1129 
1132 

1140 
1159 
1168 
1203 


1213 
1223 
1230 
1249 
1255 


CHAPTER  V. 


ESTATE  FOR  YEARS. 

The  Nature  of  the  Estate 

How  an  Estate  for  Years  may  be  created 

By  whom  an  Estate  for  Years  may  be  granted 

To  whom  an  Estate  for  Years  may  be  granted,  or  in  whom 

In  what  Things  it  may  be  had 

Incidents  to  the  Estate 

How  it  may  be  lost     . 

Renewal  of  the  Estate 

Injuries  affecting  the  Estate 


1267 

• 

1274 

1313 

it  may  vest 

1429 

1459 

• 

1463 

14S0 

• 

1523 

1541 

CHAPTER  VI. 

ESTATE  AT  WILL  FROM  YEAR  TO  YEAR,  OR  AT  SUFFERANCE. 


SECT.  I. 

ESTATE  AT  WILL. 


How  it  may  or  might  be  created 
How  it  may  be  determined 


1544 
1549 


SECT.  II. 

TENANCY  FROM  YEAR  TO  YEAR. 


How  the  Estate  may  be  created    . 
How  it  may  be  determined 


1566 
1567 


SECT.  III. 


ESTATE  AT  SUFFERAXCE 


1597 


CONTENTS,  XIU 

CHAPTER  YII. 

EQUITABLE  ESTATES. 

SECT.  I. 
OF  USES. 

Uses  at  Common  Law  .  .  ,  •        5  1605 

Uses  since  the  Statute         ....  1621 

Who  may  stand  seised  to  a  Use   ....  1623 

Who  may  take  a  Use           ....  1626 

What  Property  may  be  conveyed  to  Uses         .                     .                    .  1627 

How  a  Use  may  be  raised  or  created      .                     .                     .  1629 

Execution  of  Uses  by  the  Statute                      .                    .                    .  1646 

Limitation  of  Uses                ....  1664 

How  a  Use  may  be  defeated  or  destroyed                            .                    .  1693 

SECT.  II. 

OF  TErSTS. 

Nature  of  a  Trust  in  general        ....  1703 

How  a  Trust  may  be  created                  .                    .                    .  1T63 

How  executed             .....  1S04 

Of  Trustees,  their  Estate,  Office,  &c.      .                     .                    .  1S20 

Of  Cestui  que  Trust,  his  Interest,  Rights,  &c.                       .                     .  1932 

Forfeiture  of  a  Trust           ....  1956 

SECT.  III. 

OF  POWERS. 

or  POWERS  i.\  GENERAL. 

Nature  of  Powers      .....  1959 

How  a  Power  is  created      ....  196.5 

How  a  Power  is  executed              ....  1969 

How  a  Power  may  be  lost                       .                    .                    .  2019 

POWERS  IX  PARTICULAR. 

Power  of  Appointment                 ....  2027 

Power  of  Revocation            ....  2065 

Power  to  Jointure  or  Portion        ....  20?6 

Power  to  Lease                    ....  2093 

Power  of  Sale,  Exchange,  Partition,  &c.         .                    .                    .  2101 

Power  to  appoint  new  Trustees,  and  Powers  of  Trustees              .  2104 


CHAPTER  Yin. 

ESTATE  ON  COXDITIOX. 


SECT.  I. 
OF  ESTATES  ON  CONDITION  IN  GENERAL. 

Nature  of  Conditions  ....  2127 


XIV  CONTENTS. 

How  a  Condition  may  be  created,  and  to  what  Estates  annexed  §  2140a 

To  what  Things  Conditions  may  be  annexed,  and  in  what  Manner  .           2147 

To  whom  a  Condition  may  be  reserved,  and  who  bound  by  it        .  2150 

Distinction  between  Conditions  Precedent  and  Subsequent  .           2152 

Performance  of  Conditions                       .                    .                     .  2161 

Breach  of  Conditions                      ....  2186 

How  a  Condition  may  be  apportioned  or  lost                       .  .          2199 

SECT.  II. 

Of  the  Nature  of  a  Mortg^g-e,  its  different  Kinds  and  Incidents  .          2202 

Of  the  Mortgagor,  who  may  be,  &c.         ,                    .                     .  2210 

Of  the  Mortgagee,  his  Rights,  &c.                   .                     .  .           2224 

Of  Equity  of  Redemption     ....  2260 

Of  Foreclosure          .....  2281 

SECT.  III. 

ESTATES  BY  STATUTE-MERCHANT,  STATUTE-STAPLE,  AND  ELEGIT  2297 


CHAPTER  IX. 


ESTATE  IN  COPARCENARY. 


Nature  and  Properties  of  the  Estate                 .                    .  .          2296 

How  created     .....  2298 

How  Things  may  be  enjoyed  in  Coparcenary                       .  .           2299 

How  an  Estate  in  Coparcenary  may  be  destroyed      .                    .  2300 


CHAPTER  X. 

ESTATE  IN  JOINT  TENANCY. 


Nature  and  Properties  of  the  Estate       .  .  .  2-302 

How  created  .  .  •  •  •  2310 

How  destroyed  ....  2312 


CHAPTER  XI. 


TENANCY  IN  COMMON. 


Nature  and  Properties  of  the  Estate  .  .  .  2316 

How  created     .....  2319 

How  destroyed  .  .  .  .  •  2321 


CONTENTS. 


xy 


CHAPTER  XII. 


ESTATE  IN  REMAINDER. 


Nature  of  a  Remainder,  and  the  Requisites  thereto 

Of  what  Things  there  may  be  a  remainder 

Of  Remainders,  vested  and  contingent 

Cross  Remainders 

When  Remainders  are  void,  lost,  or  defeated 


5  23-23 
2327 
2329 
2339 
2341 


ESTATE  IN  REVERSION 


CHAPTER  XIII. 


2345 


CUSTOMARY  ESTATES 


CHAPTER  XIV. 


2354 


BOOK    IV. 

TITLE   TO   THINGS    REAL. 


TITLE  IN  GENERAL 


CHAPTER  I. 


2374 


Descent  at  Common  Law 
Descent  by  Custom 


TITLE  BY  ESCHEAT 


CHAPTER  H. 

TITLE  GAINED. 


SECT.  I. 

TITLE  BY  DESCENT. 


SECT.   II. 


23S9 


2412 


XTl  CONTENTS. 

SECT.  III. 
TITLE  EY  PEESCEIPTION,  OCCVT.KyCY,  ELECTION,  ESTOPPEL 

SECT.  IV. 

TITLE  BY  ALIENATION    .... 


§  2419 


o  117 


CHAPTER  III. 

TITLE  LOST. 


SECT.  L 


BY  FOEFEITrKE  OB  DISCLAIMER 


SECT.  II. 
BY  EXTINGUISmiENT,  SUSPENSION,  SrKRr.NDEK,  ANT)  MEBGEK 


2441 


2444 


BOOK    V. 


INJURIES  TO    THINGS  REAL,  AND    THEIR    REME- 
DIES. 


Ouster 

Trespass 

Nuisance 

Waste 

Subtraction 

Disturbance 


CHAPTER  I. 
rS'JTRIES  TO  THINGS  REAL. 


2454a 
2453 
2461 
2465 
2471 
2472 


CHAPTER  II. 
REMEDIES  FOR  THE  rSJITlIES  TO  THINGS  RE-\L. 


By  Act  of  the  Party 
By  Judicial  Proceedings 


2473 
2477 


lABLE   OF   CASES. 


Abbot  T.  Barton,  Trusts 

V.  Moore,  Franchises 


Abbot  of  Ramsey's  case.  Waters 
Abbot  of  StroU  JlarccDa's  case,  Fran- 
chises "^29 
Abdy  T.  Gordon,  Election                       2427 
Abc-rjaveony  (Ld.)  v.  Thomas,  Copr- 

holds  915 

Abrahall  v.  Brown,  Estate  for  Years 


§  1717  Alder  v.  SariD,  Right  to  Water 

64S  Alderman  v.  Xeate,  Estate  fi>r  Years 
105  AJdred'a  case.  Right  to  Light,  &.C. 

,  Prescriptioa 

,  Nuisance, 


Aldrich  t.  Cooper,  Assets 

T.  Cooper,  Mortgage 


§437 
1294 
446 
2423 
2461 
54-53 
2277 
4d 


and  Norse's  case,  Ancient  De- 


Aldridge  t.  Wallscoort,  A^ets 
12^  Aleworth  or  Aleway  v.  Roberts,  Dower  1204 


mesne  S54 

Abraham  v.  Bnbb,  Estate  Tail   after, 

ic  1060 

T.  Tw-igg,  Uses  1  ^'3  • 

Accroid  v.  Smithson,  Land  and  Money 


Trusts 
Acc-y  V.  Simpson,  Dower 
Achcrk-j  v.  Roe,  Trusts 

V.  Vernon,  Trusts 

Ac]  and  v.  Gaisford,  Tmsts 
Actan  V.  Pierce,  3Iort^ge 

V.  Woodgate,  Trusts 

Acton's  case.  Manors 

Franchises 

Adair  v.  Shaw,  Trusts 
Adams  v.  Adams,  Trusts 

V.  Adams,  Powers 

V.  CUfton,  Trusts 

r.  Grane,  Rent 

V.  Meyrick,  Assets 

y.  Paynter,  Trusts 

¥.  Paynter,  Mortgage 

V.  Savag'e,  Uses 

V.  Taunton,  Trusts 

Adtimson  v.  Araiitasre 


■r2, 17 


Alexander  t.  Alexander,  Estate  S>r 
Years 

V.  Alexander,  Trusts 

V.  Alexander,  Powers 

T.  Bonnin.  Estate  for  Years  12S4 

V.  Gres'.am,  Assets 

Al-m  V.  Belchier.  Powers, 

1201  Alford  T.  Al-br-i,  Jointure 
1355  Allanson  r.  Ciitherow,  Powers 

Allen  V.  Abraham,  Copyholds  ls8 

V.  Anthony,  Mortg^^^e  ^51  a 

T.  Bower,  Estate  for  Years  1291 


1363 
1848 
1980 


42 

20*4 

1241 

1990,  2653 


ITVJ 
226r 

1779  lAUea  and  Hill's  case.  Estate  at  SaSer- 
88|     aace  1597 

1901 
368.  3S7 


631 

i^ec' 


Iml^  Trusts 
Ormond,  Rijfat  of  Way 


Adderley  v.  Clavermg,  Estate  ibr  Years  1510 


Foalton,  Copyholds  782 

-j.,r,r    V.  Poolton,  Customarr  Estates  2362 

1952  V.  Sayer,  Trusts         '             *  1933 

235  , T.  Spen.41ove,  Estate  Tail  982 

49  •  AUeyn  v.  Allem.  Jointure  1233 

1 85 1 '  ABgood  T.  Withers,  Estate  Tail  991 

2-^53 :  AQoway  v.  ALoway,  Powers  1959a 

16 15  AUport'v.  Bicon.  Fee  Simple  956 
1^45;  Aiiston  T.  Pamphin,  Right  of  Way,  365.  387 

1750 :  AUsopp  V.  Patten,  Estate  for  Years  1231 


■  V.  Hart,  Copyholds 
Adlin^toa  v.  Cann,  Trusts  1721, 

r.  Cann,  Mortgage 

Adye  v.  Feuilleteau,  Trusts 
Agard  v.  King,  Estate  for  Years 

V.  Peterborough,  (Bp.)    Next 

Avoidance 

Ailner's  case,  Copyholds 

Aire,  Scc~,  Nav.  Co^  Waters 

Airley  Earldom,  Dignities 

Albany's  case.  Powers 

Albermarle  (Duchess)   v.   Bath,  (Ld.) 

Powers 
AJbermarle  (E  )  v.  Rogers,  Advowsons 

V.  Rogers,  Trusts 

Alcock  V.  Cooke,  Franchises 

V.  Sloper,  Trusts 

Alden  v.  Gregory,  Trusts 
Aldea's  case,  Ancient  Demesne, 
Aldenburgh  v.  Peaple,  Rent 

October,  1846. — B 


816 

1766 
2221 
1575 
1515 

127 
852 
110 
619 

2019 

2042 


Altham  (Ld    v.  Anglesea,    Earl)  Uses  1645 


Alton  Wood's  case.  Estate  Tail 
Amand  r.  Bradboame,  Trusts, 
Ambrose  v.Ambrose,  Trusts, 
Amesbury  v.  Brown,  Estate  Tail 
■ —  v.  Brown,  Mortgage 


Amhnrst  t.  Dawling,  Adrowsons 

T.  Dawling,  Trusts 

T.  Dawling,  Mortgage 

T.  Litton,  (not  Lilton,)  Mort- 


1016 
1930 
1764 
1008 
2223 
120 
1882 
2219 


gage 
Amphlett  v.  Parke,  Land  and  Money 
T.  Parke,  Trusts 


Ancaster  (D.)  t.  Mayer,  Assets 
126  Anderson  T.  Anderson,  Trusts 


V.  Dawson,  Power 

-  T.  Dwyer,  Dower 
-,  Ex  parte,  Trusts 

-  v.  Hayward,  Copyholds 


1582 

659 

1885 

1731 

^38  Anderson's  case.  Estate  Tail 
242 '  Anderton  t.  Cook,  Assets 


2267 

72 

1792 

49 

1757 

2000 

1210 

1«27 

903 

1010 

49 


XVJU 


TABLE    OF    CASES. 


Andrew  v.  Pearce,  Powers  9  2094 

V.  Soutliliouse,  Fee  Simple,  959 

V.  Riglcy,  Trusts  1799 

Andrews  v.  Blunt,  Estates  on  Condi- 

tion  2140-7 

V.  Emmott,  Assets  49 

V.  Emmott,  Powers  1994 

Angell  V.  Dawson,  Powers  2120 

Angier  v.  Stannard,  Trusts  1914 
Amiandale,  (Lady)   Ex  parte,  Land 

and  Money  78 

Annesley  v.  Simeon,  Trusts  1901 

Ansley  v.  Chapman,  Fee  Simple  959 
Antrim  (Ld.)  v.  Buckingham,  (D.) 

Powers  1969 

Antrobus  v.  Smith,  Trusts  1806 

Appleford's  case.  Franchises  724 

Appleton  V.  Doiley  or  Baily,  Rent  230 

V.  Doiley  or  Baily,  Copyholds  776 

L'Apostre  v.  Le  Plaistricr,  Trusts  1934 

Aprice's  case.  Estate  Tail  after,  &c.  106;i 

Archdeacon  v.  Jennor,  Waste  2467 

Archer's  case,  Estate  Tail  990 

,  Life  Estate  1030 

Ards  V.  Watkins,  Rent  210 
Argent  V.  St.  Paul's,  (Dean,  &:c.,)  Fran- 
chises                                     •  710 
Arkwright  v.  Gill,  Right  to  Water  399 
Arlct  V.  Ellis,  Common                      270.  321 

V.  Ellis,  Copyholds  859 

Arniitage  v.  Metcalf,  Assets  45 

Armstrong  v.  Wolsey,  Uses  1641 

Armstrong  v.  Peirse,  Trusts  1935 

Armyn  v.  Appletoft,  Franchises  631 

Armytage  v.  Armytagc,  Powers  1997 

Arnitt  v.  Bream,  P^statc  for  Years  1303 

Arnold  v.  Bidgood,  Estate  for  Years  1443 

— V.  C^hapman,  Assets  58 

V.  Chapman,  Land  and  Money  72 

— V.  Chapman,  Trusts 

V.  Kcmpstead,  Dower 

^  V.  Skeale,  Dower 


Arris  v.  Stukeley,  Offices 
Arthington  v.  Coverley,  Advowsons 

V.  Coverley,  Trusts 

V.  Fawkes,  Common 

V.  Fawkes,  Copyholds 


1794 
1199 
1161 
597 
122 
1901 

sr.i 

917 
822 


Arundel's  (E.)  case.  Copyholds 
Arundel  (E.)  v.  Grey,  Estate  for  Years  1494 
Arundel  (Dame)  v.  Pembroke,  Dower  1203 
Arundcll  v.  Philpot,  Powers  2076 

Ascough's  case.  Rent  213 

Ashburton  v.  Ashburton,  Land  and 

I\Ioucy 
Ashburton' V.  Ashburton,  Trusts 
Ashby  V.  Freekleton,  Right  to  Pews 
Ashe  V.  Royle,  Copyholds 
Ashegcll  V.  Dennis,  Advowsons 
Ashfield  V.  Ashfield,  Copyholds 
V.  Ashfield,  Estate  for  Years 


Ashmead  v.  Ranger,  Common 

' v.  Ranger,  Copyholds 

■ v.  Ranger,  Life  Estate 

Ashton  V.  Ashton,  Tithes 

. v.  Hutton,  Copyholds 

Ashton's  case,  Jointure 

Asiley  V.  Tankervillo  (E.),  Assets 


78 

1886 

496 

918 

126 

884 

1410 

357 

850,  906 

1045 

134 

902 

1218 

49 


Astley  V.  Tankerville  (E.),  Mortgage  §  2278 
Aston  v.  Aston,  Life  Estate  1 040 

V.  Aston,  Jointure  1243 

V.  Smalhnan,  Joint-tenancy  2307 

Astry  V.  Ballard,  Lands  86 

Atcherley  v.  Vernon,  Trusts  1750 

Athol's  (D.)  case.  Dignities  619 

Atkins  V.  Atkins,  Copyholds  913 

V.  Hatton,  Commons  95 

V.  Hatton,  Cojjyholds  917 

V.  Hill,  Franchises  632 

V.  Montague,  Offices  536 

Atkinson  v.  Baker,  Life  Estate  1050 

V.  Featherstone,  Estate  Tail     986 

V.  Hutcliinson,  Estate  Tail       981 

V.  Pillworth,  Estate   for 

Years  1526 

Att-Gen.    v.  Backhouse,  Trusts  1893 

V.  Baliol  Coll.,   Estate  for 

Years  1293 

V.  Berryman,  Powers  1980 

—  V.  Bov»yer,  Mortgage  2243 

V.  Bradyll,  Life  Estate  1064 

V.  Brettingiiam,  Trusts  1892 

V.  Briekdalo,  Trusts  1891 

—  V.  Brooke,  Trusts  ]  892 

V.  Buller,  Trusts  1839,  1891 

V.  Caius  Coll.,  Trusts  1 824 

V.  Clack,  Trusts  1827 

—  V.  Clarendon  (E.),  Estate  for 

Years  1454 

V.  Clarendcn  (E.),  Trusts        1824 

V.  Coventry,  Rent  174,  234 

V.  Crofts,  Mortgage  2268a 

V.  Cross,  Trusts  1892 

V.  Cunning,  Trusts  1882 

—  V.  Davy,  Franchises  705 

v.  Day,  Franchises  714 

V.  Day,  Estate  Tail  1007 

V.  Day,  Trusts  1761 

—  v.  Dimond,  Assets  37 

V.  Dixie,  Franchises  726 

V.  Dixie,  Estate  for  Years      1454 

V.  Dixie,  Trusts,  1894 

V.  Doughty,  Right  to  Light, 

&,c.  446,  475 

V.  Duplessis,  Trusts  1768 

V.  Eardley  (Ld.),  Tithes  135 

V.  Foundling  IIosp.  (Gov.), 

Franchises  72C 

V.  Foundling  Hosp.,  Waste    1041 

V.  Foundling  Hosp.  Trusts       182 

V.  Fullerton,  Commons  95 

—  V.  Gleg,  Trusts  1849 

V.  Gleg,  Dower,  1975 

V.  Gower,  Trusts  1934a 

V.  Green,  Estate  for  Years     1420 

V.  Green,  Trusts  1794 

V.  Griffith,  Estate  for  Years  1420 

V.  Griffidi,  Trusts  1892 

V.  Haberdasher's  Company, 

or  Tanner,  Trusts  1923 

V.  Hall,  Trusts  1774 

V.  Hotham  (Ld.),  Estate  for 

Years  1420 

V.  Hunoerford,    Estate    for 

Years  1420 


TABLE    OF    CASES. 


XIX 


Att-Gen.   v.  Hun gerford,  Trusts  §18901 

V.  Hurst,  Assets  58] 

V.  Kerr,  Trusts  1892  i 

V.  Landesfield,  Trusts  1824 1 

V.  Locklcy,  Dower,  1174 

V.  Maj'wood,  Trusts  1893 

V.  Meyrick,  Mortgage  2243 

V.  Newark,  Trusts  1890 

V.  Newcombe,  Trusts  1901 

Nicholl,Riaht  to  Light,  &c.  475 

Norwich  (May.),  Trusts     1929 

Parker,  Trusts 

Pearson,  Powers 

Poulden,  Trusts 

Richards,  Waters 

Rochester,  Trusts 
V.  Sands,  Trusts  1714.  1728. 
V.  Scarisbrook,  Trusts 
V.  Scotl,  Advowsons 

Scott,  Franchises 


1901 

2105 

17bl 

105 

1892 
1907 
1882 
120 
705 
1130 
1881 
2109 


V.  Scott,  Dower 

V.  Scott,  Trusts 

V.  Sliorc,  Powers 

• V.  Stamford  (JMa}'.),  Estate 

for  Years  1454 

V.  Stephens,  Trusts  1827 

V.  Sutton,  Estate  Tail  984 

V.  Tyndall,  Assets  W 

V.  Vigors,  Estate  for  Years  1415 

V.  Vincent,  Copyholds  915 

V.  Vivian,  Trusts  1895 

V.  Warren,     Estate    for 

Years  1420 

V.  Weymouth,  Assets  57 

V.  Whorwood,  Jointure  1232 

V.  Wliorwood,  Trusts  1824 

V.  Wilson,  Trusts  1777// 

V.  Wycliite,  Advowsons  126 

Attree  v.  Scott,  Copyholds  785 

Atwatcrs  v.  Birt,  Powers  1975(7 

Atvvood  V.  Lamprev,  Dower  1211 

Aubrey  v.  Fisher,  Waste  2466 

V.  Middlcton,  Powers  2116 

Audley  v.  Audley,  Land  and  Money  73 
Auriol  V.  Mills,  Rent  205 
Austen  or  Austin  v.  Bennet,  Copy- 
holds S06 

Austen  v.  Halsey,  Assets  54 
V.  Halsc}',  Trusts  1761 

V.  Halsey,  Mortg-age  2207a 

V.  Nicholas,  Waters  108 

V.  Taylor,  Estate  Tail  991 

V.  Taylor,  Trusts    1714.  1808.  1817 

Austen's  case.  Ways  102 

Aveling  v.  Knipe,  Trusts  1782 

Aveling  v.  Knipe,  Joint-tenancy  2307 

Avery  v.  Chesl3'n,  Fixtures  23 

Axrainster  Parish  case.  Franchises  677 

Ayer  v.  Orme,  Estate  for  Years  1348 

Ayliffe  v.  Murray,  Trusts  1926 

Aylor  V.  Chep,  Joint-tenancy  2304 

Aynsley  v.  Wordsworth,  Rent  220 

Ay  ray  v.  Lovelas,  Advowsons  122 

Ayre's  case.  Common  351 
Ayres  V.  Willis,  Dower                  1195.1201 

Babington  v.  Greenwood,  Jointuro  1220 


Bach  V.  Meats,  Rent  §  244 

Back  V.  Stacey,  Right  to  Light,  &iC.         463 
Backhouse  v.  Middlcton,  Trusts  1719 

V.  Wells,  Estate  Tail  988 

Backhouse's  case.  Estate  for  Years        1500 
Bacon   v.  Bacon,  Trusts  1908 

V.  Bacon,  Descent  2393 

and  Palmer's  case.  Common        342 

V.  Thurley,  Fee  Simple  960 

Baddelcy  v.  Leppingwell,  Copyholds        798 

V.  Leppingwell,  Fee  Simple      960 

Baden  v.  Pembroke  (E.),  Laud  and 

IMoncy  63 

V.  Pembroke  (E.),  Heir  81 

Badger  v.  Ford,  Common  315.  337 

Badham  v.  Mce,  Powers  2020 

Bagg's  case.  Franchises  701 

Bagot  or  Baggott  v.  Bagot,  Trusts       1 827. 

1890 

V,  Orr,  Waters  108 

V.  Oughton,  Assets        48 

V.  Oughton,  Estate 

for  Years  1371 

Bagshawc  v.  Goward  or  Gowin,  Fran- 
chises 663 

V.  Spencer,  Uses  1 659 

V.  Spencer,  Trusts       1707.  1815 

Bailes  v.  Wenwan,  Estate  for  Years      1517 
Bailey  v.  Appleyard,  Right  of  Way         362 

V.  Ekins,  Assets  42 

Bailis  V.  Gale,  Fee  Simple  961 

Bainbridge  v.  Blair,  Powers  2105 

Bainton  v.  Ward,  Powers  2061 

Baker  v.  Bayley,  Life  Estate  ]  056 

V.  Brent,  Advowsons  126 

V.  Holzapfcl,  Rent  202,  257 

V.  May,  Assets  43 

V.  Rogers,  Next  Avoidance  127 

Baldwin  v.  Noakes,  Copyholds  816 

V.  Tudge,  Franchises  655 

130 

1808 

90 

1551 

107 


V.  Impropriation 

Bale  V.  Coleman,  Trusts 
Ball  V.  Cross,  Churches 

V.  Cullimore,  Estate  at  W^ill 

V.  Herbert,  Waters 

•,  Right  of  Way 


V.  Montgomery,  Trusts 


372 

1896 
Ballard  v.  Dyson,  Right  of  Way  372 

Bally  V.  Wells,  Estate  for  Years  1461 

Balmain  v.  Shore,  Land  and  Money  78 

Baltinglass's  case.  Powers  2094 

Bamfield  v.  Wyndham,  Assets  49 

Banipficld  v.  Popham,  Life  Estate  1029 

Banbury  case.  Dignities  602 

Banbury's  (Ld.)  case,  Powers  20086 

Bank  (England)  v.  Lunn,  Trusts  1824 

V.  Parsons,  Trusts        1624 


Bank  or  Banks  v.  Scott,  Land  and 

Money  76 

V.Sutton,  Estate  Tail  1012 

,  Dower,  ]  1 30, 

1103 
■,  Powers  2011 


Bann  (not  Bann's)  River  case,  Waters  108 
Bardon  and  Witherington's  case,  Es- 
tate for  Years  1472 
Bardswell  v.  Bardswell,  Trusts  1775 


XX 


TABLE    OF    CASES. 


Barharn  v.  Hayman,  Tenancy  from 
Year  to  Year  § 

v.Thanet  (E.),  Assets 

Baring  v.  Nash,  Commons 
Barker  v.  Boucher,  Assets 

V.  Greenwood,  Trusta 

V.  Keat,  Uses 

V.  London  (Bp.),  Coparcenary 

V.  Richardson,  Right  to  Light, 

&,c. 

V.  Smart,  Mortgage 

V.  Taylor,  Jointure 

Barlo'.v  V.  Grant,  Trusts 

V.  Rhodes,  Right  of  Way 

Barnard  v.  Large,  Trusts 
Barnard's  (Ld.)  case,  Waste 

. ,  Life  Estate 

Barnardiston  v.  Chapman,  Tenancy 
in  Common 

V.  Lingood,  Estate  Tail 

Barnes  v.  Corke,  Copyholds, 

• V.  Crowe,  Powers 

Barnes  v.  Mawson,  Mines 
Barnham  and  Higgins,  Copyholds 
Barrel  v.  Sabine,  Mortgage 
Barrett  v.  Glubb,  Advowsona 
Barrington's  case,  Common 
Barrington  v.  Horn,  Dower 
Barrow  v.  Green,  Trusts 

V.  Keen,  Right  to  Pews 

Barry  v.  Edgeworth,  Fee  Simple 

V.  Nugent,  Estate  for  Years 

V.  Usher,  Trusts 

Bartholomew  v.  May,  Assets 
Bartlett  v.  Downes,  Offices 

. V.  Pickersgill,  Trusts 

Barton  v.  Briscoe,  Trusts 

V.  Horton,  Estate  for  Years 

Barton's  case,  or  Lea  v.  Burton,  Uses 
Barwick  v.  Matthews,  Commons 
Bascawcn  v.  Herle,  Uses 
Baskervillc  v.  Baskerville,  Trusts 
Basset  v.  Basset,  Jointure 

V.  Maynard,  Common 

V.  Manxcl,  Uses 

Bassett  v.  Percival,  Assets 
Bastard  v.  Proby,  Trusts 
Bate  V.  Amherst,  Uses 
Batcman  v.  Batcman,  Dower 

^ —  V.  Davis,  Trusts 

,  Powers 

V.  Phillips,  Copyholds 

V.  Ross,  Dower 

Baton's  case,  Right  to  Water 
Bates  V.  Bates,  Dower 

. V.  Clayton,  Fee  Simple 

V.  Dandy,  Estate  for  Years 

,  Trusts 

,  Morltrajre 


Bateson  v.  Green,  Common 
Bath  (E.)  V.  Abncy,  Copyholds 

,  Trusts 

Bath's  (Bp.)  case.  Life  Estate 

,  Estate  for  Years 

,  Estate  at  Will 

Bath's  (Prior)  case.  Copyholds 
Bath  and  Montague's  case,  Powers 


1569 

48 

95 

42 

183:i 

1634 

2299 

453 
2207 
1265 
1887 

366 
1913 
1042 
1042 

2318 

1004 

781 

1984 

96 

881 

2203 

131 

305 

1186 

1768 

484 

958 

1283 

1787a 

46 

571 

1782 

1752 

1508 

1696 

274 

1663 

1808 

1252 

355 

1615 

48 

1816 

1690 

1175 

1951 

1983 

910 

1189 

406 

1129 

962 

1432 

1719 

2280 

314 

782 

1902 

1024 

1305 

1545 

841 

2001 


Bathurst  v.  Cox,  Franchises 
Batmore  v.  Graves,  Copyholds 
Batmore  v.  Graves,  Descent 
Batson  v.  Lindegreen,  Assets 
Baugh  V.  Haynes,  Estate  for  Years 
Baxter  v.  Doudswell,  Tenures 
,  Life  Estate 


§ 


v.  Taylor,  Right  to  Water 

Bayley  and  Stevens,  Descent 
Baylis  v.  Dineley,  Estate  for  Years 
V.  Newton,  Trusts 


650 

781 

2402 

42 

1333 

749 
1059 

443 

2406 

1410 

17776 

1330 
1969 


Bealey 
Bean 


Bayly  or  Bayley  v.  Munday,  Estate 
for  Years 

V.  Warburton,  Powers 

Baynham  v.  Guy's  Hosp.,  Estate  for 

Years  1515 

Beable  v.  Dodd,  Trusts  1756 

Bcachcroft  v.  Beachcrofl,  Fee  Simple      961 
Beal  or  Beale  and  Langley,  Copyholds    843 

V,  Sheppard,  Life  Estate  1031 

V.  Thompson,  Rent  202 

V.  Shaw,  Right  to  Water      401.  440 
Bloom,  Common  295.  323 

v.  Halley,  Uses  950 

Beard  v.  Nuttall,  Jointure  1234.  1258 

V.  Wcstcott,  Powers  2050 

Bcarpark  v.  Hutchinson,  Life  Estate      1053 
Bcauclerk  v.  Ashburnham,  Trusts  1930 

V.  IMcad,  Land  and  Money         61 

Beaudley  v.  Brook,  Right  of  way  362 

,  Uses  1610 

Beaumont  v.  Bromley,  Customary 

Estates 
Beaumont's  case,  Estate  Tail  after 

&c. 
Beavan  v.  Delahay,  Rent 

,  Estate  for  Years 


Beck  v.  Rcbow,  Fixtures 
Welsh,  Mortgage 


Beckett  v.  Cordlcy,  Mortgage 
Beckl'ord  v.  Wade,  Trusts 
Beckman  v.  Freeman,  Trusts 
Bcckwith's  case.  Dower 
,  Uses 


Bedell's  case,  Uses 

Bedford  v.  Abercorn  (Marq.),  Trusts 


V.  Alcock,  Franchises 

V.  British    Museum  Trust. 


2373 

1067 

241 

1474 

19 

2238 

2207a 

1729 

1725 

1185 

1612 

1633 

1819 

642.  655 


Right  to  Light 
Bodlbrd's  (E.)  case.  Estate  for  Years 


Uses 
Reversion 


Bcdingfield's  case.  Dower 
Bedingfield  v.  Canterbury  (Archbp.), 
Advowsons 


479 
1329. 
1347 
1617 
2315 
1190 

126 


V.  Onslow,  Right  to  Water  433 


Beilby,  Ex  parte,  I'rusts 
Belch  V.  Harvey,  Mortgage 
Belcher,  Ex  parte.  Chattels 

v.  Renforth,  Mortgage 

Belfield  or  Soutlicote  v.  Adams,  Copy- 
holds 
Belford  v.  Foord,  Estate  for  Years 
Bclfour  V.  Weston,  Rent 
Bell,  Ex  parte,  Dower 
Bell  V.  Hyde,  Trusts 


1750 

2270 

24 

2247 

771 
1345 

202 
1174 
1826 


TABLE    OF    CASES. 


XXI 


Bell  V.  Pliyn,  Land  and  Money 
Bellamy  v.  IJiirrow,  OHices 

V.  l>iirro\v,  Trusts 

Bellasis  and   Bufbricli,   Estate    for 

Years 
— — —  V.  Cole,  Rent 

V.  (^oinpton,  Trusts 


§78 

574 

17G4 


Bigg'on  V.  Bridge,  Rent 
Hill  V.  Cureton,  Trusts 
,  Powers 


§194 
1779 
2114 

1884 


1518 
1!)7 

1785 
Bcllew  V.  Laiigden,  Common  318 

Bclvidcrc  (Karl)  v.  Roclifort,  Assets  46 

Bcnbow  V.  Townsend,  Trusts  17()l) 

1781 
Beneson  and  Strode,  Copyliolds  873 

Bengourrli  V.  Walker,  Jointure  1247 

Benn  v.  Dixon,  Trusts  1885 

Bonnet  or  Bennett  v.  Aburrow,  Powers  1993 

V.  Colley,  Trusts      1729 

1881.  1952 
V.  Davis,  Trusts      1749. 

1822 

V.  Reeve,  Common    271. 

283 
Bennicombe  v.  Packer,  Uses  1681 

Benson  v.  Benson,  Land  and  Money  65 

,  Trusts  1755 

.        —  V.  Chester,  Common  270 

v.  Wliitham,  Trusts  1772 

Bentley  v.  Ely  (Bp.),  Franchises  720 

Bcrcsford's  case.  Estate  Tail  979 

Berkeley's  (Ld.)  case.  Estate  Tail  1010 

Berkhampstead  Free  School,  Ex  parte, 

Franchises         726 

,  Estate  for  Years     1420 

Bcrrinian  v.  Peacock,  Copyliolds  852 

Bcrriugton  v.  Brooks,  Franchises  651 

Berry  v.  (Jreen,  Copyholds  901 

v.  Heard,  (^ipyholds  852 

V.  Lindlcy,  'I'cnancy  from  Year 

to  Year  1577 

v.  L^slier,  Land  and  Money  71 

Bertie  v.  Abinoton,  fE.)  Estate  Tail       100;) 

V.  Bcaumor.t,  Rig-ht  of  Way  37i) 

V.  Falkland,  (Lord)  Conditions     2154 

Bertue  v.  Stile,  Jointure  1250 

BerwcU  v.  Corrant,  Assets  42 

Best  v.  Stampford,  Trusts  1 742 

Beswick  v.  Cundon,  Nuisance  2464 

Bcttisworth  v.  St.  Paul's,  (Dean,   &c.) 

Estate  for  Years  .  1630 

Bettisworlli's  case.  Lands  87 

Bcvant  v.  Pope,  Dovi'er  1173 

Beverley  v.  Beverley,  Dower  1193 

• v.  Canterbury,    (Archbishop) 

Advowsons  122 

Beverley's  case,  Estate  for  Years  1411 

Beversliam's  case,  Copyholds  8'o4 

Bevil's  case,  Title  237G 

Bevington  v,  Parkhurst,  Jointure  1258 

Bewick  v.  Whitfield,  Timber  26 

Biccot  v.  Ward,  Right  to  Water  427 

Bickham  v.  Crutweil,  Assets  49 

V.  Freeman,  Assets  42 

Biekncll  v.  Hood,  Estate  for  Years         1288 

V.  Page,  Assets  49 

Blddleeombe  v.  Kerwell,  Common  306 

Bidduli)h  v.  Alhcr,  Franchises  729 

Bificld's  case.  Estate  Tail  978 

Biggc  v.  Bensley,  Estate  Tail  881 


v.  Kynaston,  Trusts 

Billinghurst  v.  Spearman,  Estate  for 

Years  1457 

v.  Walker,  Assets  48 

Billingsby  v.  Hcrcy,  Trees,  <!tc.  25 

Biilingsley  v.  Matthew,  Powers  1975* 

Bingham  v.  Woodgate,  C'opyholds  870 

Customary 

Freeholds  921 

Bink  V.  Rokcby,  (Ld.)  Powers  2119 

Binstead  v.  Buck,  Rent  235 

Birch  V.  Blagrave,  Trusts  1781 

v.  Wilson,  Common  316 

v.   Wriglit,   Estate    for   Years  1277. 

1398 

,  Tenancy  from  Year 

to  Year  1569 

,  Mortgage  2211 

Bird  v.  riigginson.  Rent  257 

and  Kirkby,  Copyholds  874 

Birmingham  v.  Kirwan,  Dower  llf)6 
,  Election  2426 


Bisco  or  Biscoe  v.  Banbury,  (Earl) 

Mortgage  2257a 
V.  Cartwright,  Copy- 
holds 918 

V.  Holte,  Estate  for 

Years  1330 

v.  Perkins,  Uses  1707 

,  Trusts  1827 

Bishop  V.  Howard,  Rent  257 

Blackburn  V.  Graves,  Copyholds  781 

V.  Greyson,  Mortgage  2207rt 

V.  Lnssels,  Uses  1678 

V.  Stables,  Trusts  1815 

Rlackct  V.  Iiowes,  Copyholds  851 

Blackman,  Ex  parte.  Churches  91 

,  Easements  499 

Blackstone  v.  Heath,  Rent  209 

liladcs  V.  Arundale,  Rent  240 

Blake  v.  Blake,  Trusts  1856 

V.  Banbury,  Life  Estate  1036 

,  Trusts  19t)0 

V.  Elsborne,  Churches  90 

V.  Foster,  Uses  1615 

Usborne,  Right  to  Pews  484 


Blanchard  v.  Bridges,  Right  to  Light, 

&,c.  454.  457.  520 

Bland  v.  Bland,  Trusts  1774 

V.  Inman,  Rent  164 

V.  Moseley,  Right  to  liiglit,  &c.     450 

Blaiulford  v.  Blandford,  Joint-tenancy    4230 

V.    Marlborough,    (Duke) 

Jointure  1233 

V.  Thackerell,  Uses  1683 

Blandy  v.  Wildmore,  Joinlure  1245 

Blatch  v.  Wilder,  Assets  42 

Blatehford  v.  Preston,  OOiccs  588 

Blenco  v.  Marston,  Tithes  140 

Blenco's  case.  Tithes  140 

Blcwett's  case.  Copyholds  819 

Blewctt  v.  Tregoning,  Right  of  Way         362 
Bligh  V.  Darnley,  (Ld.)  Assets  40 

Blinco  V,  Marson  or  Marston,  Mills  S3 


xxu 


TABLE    OF    CASE  8. 


Blinkhorne  v.  Feast,  (2  Vez.,  not  Ves. 


§18: 

219 
2462 
1G38 
2341 
1987 
1255 
1201 
1534 
105.  107 
2455 

634 
1889 


30) 

Bliss  V.  Collins,  Rent 

V.  Hall,  Nuisance 

Blitheman  v.  Blitlicman,  Uses 

Blodwell  V.  Edwards,  Remainders 

Blore  V.  Sutton,  Powers 

Blount  V.  Winter,  Jointure 

Blower  v.  Morret,  Dower 

Bluetts  V.  Millett,  Estate  for  Years 

Blundell  v.  Catterall,  Waters 

Blunden  v.  Baugh,  Disseisin 

Blunt  V.  Whiteacre,  Franchises 

Boddy  V.  Dawes,  Trusts 

Bodman  or  Radnor  (Lady)  v.  Vender- 
bendy  or  Rotiierham  &.,  Dower 

Bolton  V.  Bolton,  Trusts 

V.  Canhani  or  Cannon,  Rent 

,  Estate  for  Years 

V.  Tomlin,  Estate  for  Years 

V.  Ward,  Customary  Estates 

Bond  V.  Brown,  Tithes 

V.  Hopkins,  Trusts 

Bonefant  v.  Greenfield,  Trusts 
Bonner  v.  Bonner,  Assets 
Bonney  v.  Ridgard,  Trusts 
Bonscy  v.  Lee,  Appropriation 
Boone  v.  Eyre,  Estates  on  Condition 
Boot  V.  Wilson,  Rent 
Booth  V.  Lambert,  Dower 
Boothby  v.  Bailey,  Right  to  Pews 

V.  Vernon,  Curtesy 

,  Merger 

Bootle  V.  Blundell,  Assets 
Booton  V.  Rochester,  (Bp.)  Advowsons 
Boraston's  case.  Fee  Simple 
Boraston  v.  Green,  Rent 

V.  Hay,  Tenures 

Borneford  and  Packington's  case,  Copy- 
holds 

Boroujih's  case.  Estates  on  Condition 
Borough  V.  Taylor,  Rent 
Boscawen  v.  Cook,  LTses 
Boson  V.  Statliam,  Trusts 
Boss  V.  Godsall,  Powers 
Bosvil  V.  Brander,  Mortgage 
Boswel's  case,  Advowsons 
Bosworth  V.  Limbrick,  Right  of  Way 
Boteler  v.  Allington,  Advowsons 
,  Trusts 


fBovey  v.  Skipwith,  Mortgage 
'^6  Bowater  v.  Ellcy,  Trusts 
Bower 


1176 

1806 

207 

1457 


Hill,  Right  of  Way 

,  Right  to  Water 

V.  Jones,  Estate  for  Years 

Bowerman  v.  Sybourn,  Trusts 
Bower  v.  Fairheard,  Jointure 
Bower  v.  Bowes,  Powers 

,  Ex  parte,  Trusts 

V.  Strathmore,  (Earl)  Trusts 


Bowles'  case.  Life  Estate 
,  Estate  Tail  after  &.c. 

,  Waste 


Bowles  V,  Poorc,  Life  Estate 

V.  Roberts,  Trusts 

V.  Stuart,  Life  Estate 

Bowlston  V.  Hardy,  Common 


Bowyer  v.  Judge,  Powers 
Boyd  V.  Wilford,  Estate  for  Years 
1277|Boydcll  v,  M'Michael,  Fixtures 

2373  V.  Walthall,  Uses 

135  Boyle  v.  Tamlin,  Easements 

1731  V.  Peterborough  (Bp.,)  Powers 

1844  Boynton  v.  Boynton,  Dower 
57,Boytcr  v.  Dodsworth,  Offices 
1955  Brabrooke  v.  Carter,  Common 
]  29  Brace's  case.  Estate  for  Years 
2156  Brace    v.    Marlborough    (Duchess), 
257 1     Mortgage 
1149  Bracebridge's  case.  Uses 
481  Bracebridge  v.  Cook,  Estate  for  Years 


11001 

2452  Bradbury  v.  Wright,  Rent 
49' Bradford  v,  Belficld,  Powers 

120 

963 

242 


1433. 


V.  Foley,  Assets 

Bradish  v.  Bradish,  Jointure 

V.  Gee,  Land  and  .Money 

Bradley  or  Bradly  v.  Gill,  Easements 

V.  Peixoto,  Fee  Simple 

V.  Wcstcotf,  Powers 

Bradshaw  v.  Eyre,  Common 

Eyre,  Copyholds 

Lawson,  Tenures 

Bradwcll  v.  Catciipolc,  Trusts 


^251 
1720 
396 
442 
1403 
1834 
1243 
1984 
1840 
1880 
1040 
1067 
2469 
1052 
1822 
1036 
354 
1959a 
1451 
24 
1630 
508 
2064 
1199 
596 
306 
1486 

2247 
1677 

1485 
154 
1977 

57 
1244 

65 


. V.  Spclman,  Common 

Bothey's  case,  Estates  on  Condition 


Bottomley  v.  Brooke,  Trusts 

Bouicntt  V.  Winmill,  Common 

Bould  V  Winston,  Uses 

Boulston's  case,  or  Boulston  v.  Hardy, 

Franchises 
Boulton  V.  Canon,  Rent 
Bourdillon  v.  Dalton,  Estate  for  Years 
Bourne's  case.  Franchises 
Bourne   v.   Rawlins,  Customary    Free- 

holds 

V.  Taylor,  Copyholds 

Bouverie  v.  Prentice,  Copyholds 
Bover  v.  Trucman,  Coi)yholds 
Bovey  v.  Sraitli,  Trusts 
— — — ,  Powers 


873 
2191 
195, 
1627' 
1766 
1983/i  Bradwell's  case.  Estate  for  Years 
2280  Bragge's  case,  Dower 
123  Braithwaitc  v.  Cookscy,  Rent 

379' V.  Hitchcock,  Estate 

120 1     Will 
1856  Bramhall  v.  Hall,  Powers 
315' Brandling  v.  Barrington,  Bent 
Brandlyn  v.  Orde,  Jointure 
V.  Ordc,  Trusts 


965 

1D663 

338.  345 

897 

735 

1916 

1312 

1116 

242 


at 


2165 

1865 

315 

1634 


643 

205 

1455 

663 

923 
859 
910 
902 
1800 
1995 


Brandon  v.  Brandon,  Rent 

Robinson,  Trusts 


Branscomb  v.  Bridges,  Right  to  Water 
Branstrom  v.  Wilkinson,  Trusts 
Braunchc's  case.  Copyholds 
Braybroke  'hd.)  v.  liiskip.  Trusts 
Bredcll  v.  Constable,  Rent 
Brcdiman's  case,  Assets 
Breorton  v.  Jones,  Mortgage 
Brend  or  Brond  v.  Brcnd,  Jointure 

Brend,  Mortgage 


Brent's  case,  Uses 

Brent  V.  Best,  Life  Estate 

V.  Haddon,  Right  to  Water 


1546 
2013 

200 
1236 
1799 

225 
1715 

434 
1889 

772 
1839 

232 
38 
2254 
1256 
2260 
1 625 
1039 

441 


TABLE    OF     CASES. 


XXIU 


Brercfon  v.  Brcrcton,  Powers              §  21 '21 

Bvest  V.  OrUley,  Trusts  1771 

B;ett  V.  Cumberland,  Waters  112 

V.  Cumberland,  Trusts  1279 

V.  Rigden,  Estate  for  Years  1818 

Brettel,  Ex  parte,  Trusts  IS'l'J 

Brewster  v.  Ai)gcll,  Trusts  1819 

V.  Angcll,  Powers  1966a 

V.  Parrot,  Estate  for  Years  1498 

Brice  v.  Smith,  Estate  Tail  979.  982 

V.  Stokes,  Trusts  1849 

Bridge  or  Bridges  v.  Bere,  Jointure  1232 
■    V.   Blanchard,   Right 

to  Light,  &ic.  4.54 

V.  Brown,  Trusts  1888 

V.  Hitchcock,  Eslate 

for  Years  1526 

. V.  Phillips,  Assets  49 

V.  Stephens,  Life  Es- 
tate 1040 
Brid-Tewater   (Countess)    v.    Bolton, 

Fee  Simple  953 

V.  Bolton, 

Trusts  1773 

Brio-ht  V.  Forth,  Manors  88 

! V.  Walker,  Right  of  V/ay  380 

Briscoe  v.  Clark,  Fee  Simple  960 
Brisden     and     Hussey,    Estate    for 

Years  1392 
Bristol    (City),'  and  Lord   Berkeley, 

Franchises  661 

Bristow  V.  Pegge,  Trusts  1935 

V.  Ward,  Powers  2047 

Brittle  V.  Dade,  Ancient  Demesne  937 
Britton  v.  Twining,  Estate  for  Years  1479 
V.  Ward,  Advowsons  123 

and   Warde's    case,   Advow- 

sons 129 
Broad  V.  Broad,  Estate  for  Years  1439 
Broadbent  v.  Wilkes,  Copyholds  860 
Broadhurst  v.  Balguy,  Trusts  1916.  1952 
Brocksopp  V.  Barnes,  Trusts  1926 
Brodie  v.  Barry,  Copyholds  918 
Brokesby  v.  Wickham,  Advowsons  127 
Bromfield  v.  Crowder,  Estates  on  Con- 
dition ,2152 

,  Ex  parte.  Land  and  Money       78 

,  Ex  parte.  Trusts  1762 

V.  Kirber,  Common  290 

V.  Teigh,  Common  350 

Bromley  v.  Holden,  Rent  244 

Brook  or  Brooke  v.  Brook,  Trusts  1827 

V.  Bulkelcy,  Trusts  1798 

V.  Goring  (Ld.,)    Estate    for 

Years  1494 

V.   Hustler,  Franchises  6 10 

V.  Noakes,  Rent  244 

Brooks  or  Brookes  v.  Brooks,  Copy. 

liolds  838 

V.  Oliver,  Dower  1121 

Broom  or  Broome  v.  Broom,    Land 

and  Money  '    78 

V.  Monk,  Election  2426 

Broughton  v.  Att.-Gen.,  Mortgage  2208 

V.  Errington,  Dower  1195 

V.  Errington,  Jointure  1231 

V.  Langley,  Uses  1039 


Broughton  v.  Randall,  Dower  §    1172 

Brouncker    v.    Baggott,    Estate    for 

Years 
Brown's  (Lady)  case.  Right  to  Water 
,  Jointure 


1479 

406 

1264 

418.  423 

1794 


Brown  v.  Best,  Bight  to  Water 
V.  Biggs,  Trusts 

V.  Curtcnsl'.aw,  Tenancy  from 

Year  to  Year  1584 

V.  Cole,  Mortgage  2236 

V.  Dean,  Rent  245 

V.  Foster,  Copyholds  912 

V.  Gibbs,  Dower  1 1 63 

V.  Goldsmith,  Manors  88 

V.  Goldsmith,  Franchises  631 

V.  Hedges,  Tenancy  in  Com- 
mon 23186 

V.  Higgs,  Trusts  1771 

V.  Higgs,  Powers  1959 

V.  How,  Trusts  185G 

V.  Jones,  Trusts  1777/> 

V.Meredith,  Dower  1155 

V.  Morris,  Rent  206 

V.  Nisbet,  Powers  2048 

V.  Pocock,  Trusts  1755 

V.  Pocock,  Powers  1959a 

V.  Quilfer,  Rent  202 

V.  Shcvil  or  Shevril,  Rent  239 

V.  Smith,  Dower  1202 

V.  Stoaey,  Rent  231 

V.  Tempcrlcy,  Trusts  1869 

V.  Tighe,  Estate  for  Years         1527 

V.  Windsor,  Easements,  115.  504 

Brownie's  case, Copyholds  769 

Browning  v.  Beston,  Dower  1203 

V.     Beston,     Estate  for 

Years  1353 

V.   Beston,   Estates    upon 

Condition  2198 

V.  Dann,  Rent  245 

BrowMilow  v.  Hcvvlcy,  Rent  169 

V.  Lambert,  Franchises  665 

Brudenell  v.  Broughton,  Trusts  1766 

•  V.  Elwes,  Trusts  184 

V.  Elwes,  Powers  2047 

Brudnell's  case,  Estate  for  Years  1514 

Bruerton's  case,  Coi)yholds  772 

Brucrton   v.  Rainsford,    Estate  for 

Years  1272.  1480 

Bruin's  case,  Offices  578 

Brummel  v.  Macpherson,  Estate  for 

Years 

V.  Prothero,  Assets 

Bryan  v.  Whistler,  Churches 

v.  Whistler,  Easements 

V.   Wetherhead,    Estate 

Years 


V.  Winwood,  Commons 

v.  Winwood,  Title 

Brydges  v.  Stevens,  Waste 

V.  Brydges,  Estate  Tail 

Buck  V.  Wright,  Rent 


Buckingham's  (Duke)  case.  Trusts 
Buckland  v.  Barton,  Powers         2036 

V.  Butterfield,  Waste 

Buckley  or  Buckly  v.  Coles,  Right 

of  Way 


1512 

49 
91 
499,  500 
for 

1299 

95 

2383 

2469 

991 

258 

177 

2062 

2465 


366 


XXIV 


TABLE 


O^ 


CASES. 


Buckley  or  Buckly  v.  Harvey,  Estate, 

at  Will  §  1548 

V.  Nightingale, 

Assets  45 

V.  Pirk,  Rent  207 

V,  Siinmonds,  Uses  1635 

V.  Taylor,  Rent  242 

Buckmaster  v.  Harrop,  Heir  80 

Buckridge  v.  Glasse,  Trusts  1946 

V.  Ingram,  Fixtures  24 

Bucks  V.  Drury,  Jointure  1215 

V.  Drnry,  Estate  for  Years  1446 

V.  Drury,  Trusts  1759 

Buck  worth  v.  Thirkell,  Curtesy  1100 

Buggins  V.  Yates,  Trusts  1775 

Bulkley  v.  Wilford,  Trusts  1768 

Bull  V.  Sibb,  Rent  258 

V.  Vardy,  Trusts  1959ry 

V.  Wyatt,  Estate  at  Will  1548 

Bullard  V.  Harrison,  Right  of  Way  374 

Bullcn  V.  Sheen,  Common  359 

Buller's  case.  Rent  247 

BuUer  V.  Exeter,  (Bp.)  Advowsons  122 

.            V.  Exeter,  (Bp.)  Coparcenary  2361 

V.  Waterhouse,  Powers  2006.  2068/j 

Bullock  V.  Finch,  Dower  1146 

V.  Thome,  Powers  2024 

Bulwer  v.  Bulwer,  Estate  for  Years  1699 

Bunn  V.  Channen,  Common  329 

Bunting  v.  Lcppingwell,  Copyholds  838 


Butcher  V.  Kemp,  Dower,  §1197 

Bute  (M.)  V.  Cuiiynghame,  Assets  54.  65 

V.  Grindal,  Common  310 

Butler's  case,  Franchises  679 

Butler  and  Baker's  case,  Rent  226 

,  Dower  1130 

Butler  V.  Archer,  Copyholds  809 

V.  Archer,  Joint-tenancy  2308a 

V.  Bray,  Powers  1975a 


V.  Duckmanton,  Estate  at  Suf- 

ferance 1 600 
.     V.  Duncombe,  Bowers  2085 

V.  Hereford,  Franchises  709 

Butricke  v.  Broadhurst,  Dower  1200 

Butt's  case.  Rent  172.  179 

,  Estate  for  Years  267 

Butt  V.  Jones,  Right  to  Pews  490 

Buttery  v.  Robinson,  Annuity  2666 

Buxton  V.  Buxton,  Trusts  1870 

Byas  V.  By  as.  Powers  2011 
Byerly  v.   Winders   or  Winder, 

Ciiurchcs  90 
V.  Winders  or  Winder,  Riglit  to 

Pews  490 

Byrcliall  v.  Bradford,  Trusts  1847 

Byrd  v.  Wilford,  Franchises  708 


Burchet  v.  Durdant,  Uses  1657,  1658 

Burden  v.  Burden,  Trusts  1926 

Burdet  or  Burdctt  v.  Doe,  Powers 
Burden  v.  Burden,  Dower 

V.  Matthewrnan,  Franchises 

Burford  v.  Lee,  Estate  for  Years 


1759. 


Burgess  v.  Wheate,  Dower 

V.  Wheate,  Trusts  1703, 

, V.  Wheate,  Esciieat 

Burgis  V.  Burgis,  Ciiattels  Real 
Burke  v.  Brown,  Trusts 
Burley's  case.  Estate  Tail 
Burn  V.  Holgrove,  Powers 

. V.  Phelps,  Rent 

Burnet  v.  Mann,  Powers 
Burncy  v.  Macdonald,  Trusts 
Burrel  v.  Cruchlcj',  Powers 

V.  Dodd,  Customary  Freeholds 

Burridge  v.  Bradyll,  Dower 

. V.  Phylcox,  Trusts 

V.  Row,  Trusts 

V.  Taylor,  Franchises 

Burt  V.  Thomas,  Assets 

Burton  v.  Brown,  Estate  for  Years 

V,  Hastings,  Trusts 

V.  Knowlton,  Assets 

V.  Picrpont,  Trusts 

V.  Spencer,  Mines 

V.  Todd,  Dower 

Pope,  Nuisance 

Western,  Right  to  Water 


Bury  V. 
Bush  V, 
Bushby  v.  Dixon,  Assets 

V.  Dixon,  Title 

Bushell  V.  Bushcll,  Powers 
Bustard's  case.  Dower 

• ,  Uses 

Butcher  v.  Butcher,  Entry, 


2002 
1190 

670 
1479 
1130 
1822 
2412 
7 
1825 

983 
2034 
205.  257 
19  69 
1825 
2049 

921 
1201 
1771 
1883 

629 

42 

1297 

1810 

49 

1748 

101 
1210 
2463 

437 
35 
2378 
1938a,  2078 
1133 
1663 
2470 


Caffrcy  v.  Darby,  Trusts 

Cage  and  Paxlin's  case,  Life  Estate 

C.  C.  Coll.  case,  Francliises 

Calland  v.  Trowc,  Advowsons 

Callard  v  Callard,  Use's 

Calfhrop's  case,  Uses 

Calvin's  case.  Dignities 
,  Curtesy, 
•,  Estate  for  Years 


Camden  v.  Anderson,  Trusts 

V.  Morion,  Rent 

Candler  v.  Smith,  Estate  Tail 

Campbell's  ease,  Rent 

Campbell  v.  Home,  Trusts 
V.  Leach,  Rent 
V.  Leach,  Estate  for  Years 
V.  Sandys,  Life  Estate 
V.  Walker,  Trusts 
V.Wilson,  Right  of  Way 
V.  Wilson,  Franchises 

Canham  v.  Fisk,  Riglit  of  Way 

V.  Fisk,  Right  to  Water 

Canncl  v.  Buckle,  Powers 

Canning  v.  Hicks,  Mortgage 

Canterbury's  (Archbp.)  case.  Tithes 
(Sheriff)  case.  Franchises 


Cantrell  v.  Church,  Right  of  Way 
Capel's  case.  Rent 

,  Tenures 

,  Estate  for  Years 


Capel  V.  Buzzard,  Rent 

V.  Girdler,  Trusts 

Card  V.  Hope,  Offices 
Carden  v.  Tuck,  Land 
Cardigan  (E.)  v.  Armitage,  Mines 
Carell  v.  Cuddington,  Tenures 

V.  Montague,  Rent 

V.  Montague.  Estate  for  Years 

Carcw  V.  Carew,  Jointure 

Carlisle  (Bp.)  v.  Blain,  Tithes 


1883 

1044 

706 

122 

1614 

1613 

602 

1094 

1449 

1784 

203 

980 

215 

1914 

175 

1378 

1051 

1870 

380 

691 

391 

416 

1973 

11 

140 

701 

396 

173 

735 

1494 

243 

1742 

574 

87 

59 

744 

175 

1376 

1252 

134 


TABLE     OF     CASES. 


XXV 


Carlisle  (May.)  v.  Blamire,  Right  to 
Water  §  435 

. (May.)  V.  Blamire,  Franchises    700 

. (E.)  V.  Armstrong,  Estate  for 

Years  1399 
Carlton  v.  Hiitton,  Right  to  Fews,  &c. 
Carpenter  v.  Carpenter,  Heir  82 
V.  Carpenter,  Jointure  1230. 12.50 


Chandler  v.  Thompson,  Right  to  Light, 

&iC. 

Chandos  (D.)  v.  Brownlow,  Estate  for 
Years 

V.  Talbot,  Timber 

486  Chandos'  case  or  R.  v.  Cavendish, 


V.  Collins,  Estate  at  Will 
Carpenters'  (The)  case.  Trespass 


15.56 
2459 
1902 
1632 
323 


Carr  v.  Ellison,  Trusts 

V.  Erroll,  (Ld.)  tJses  1667 

CarriU  v.  Park  or  Pack,  Common 
Carrington  v.  Taylor,  Waters 
Carter  v.  Barnardiston,  Fee  Simple 

V.  Barnardiston,  Life  Estate 

V.  Barnardiston,  Powers 

V.  Carter,  Rent 

■    V.  Carter,  Powers 

— —    V.  Claypole,  Estate  for  Years 

V.  Murcot,  Waters 

■ V.  Mureot,  Franchises 

V.  Ringstead,  Uses 

Carteret  (Ld.)  v.  Carteret,  Trusts 
, V.   Pascal,  Estate   for 

Years  14.32 

Caruthcrs  v.  Caruthers,  Jointure  1224. 1228 


Franchises 
Channon  v.  Patch,  Timher 
Chaplin  v.  Chaplin,  Rent 

,  Estate  Tail 

,  Dower 

,  Mortgage 

V.  Horner,  Land  and  Money 


112  Chapman  v.  Blissett,  Trusts 
963  -     -     ~ 


1030 
2063 

196 
2007 
1337 

108 

629 
1666 

185 


1717 
698 

12.53 
979 
477 
961 
436 
896 
42 

2275 


Carwardine  v.  Carwardine,  Trusts 
Cary  v.  Cary,  Trusts 
Casberd  v.  Ward,  Mortgage 
Casborne  v.  Inglis,  Trusts 

V.  Searfe,  Curtesy 

V.  Searfe,  Trusts 

V.  Searfe,  Mortgage 

Castle  V.  Dod,  Curtesy 

V.  Dod,  Uses 

Cothay  v.  Sydenham,  Trusts 
Cave  V.  Cave,  Fixtures 

V.  Holford,  Trusts  _ 

Cawdrey's  case.  Franchises 
Cecil  V.  Salisbury,  (E.)  Jointure 
Chadock  v.  Cowley,  Estates  Tail 
Chalk  V.  Wyatt,  Riglit  to  Light,  &c. 
Challenger  v.  Shephard,  Fee  Simple 
Challenor  v.  Thomas,  Right  to  Water 

V.  Marshall,  Copyholds 

Challis  V.  Casborn,  Assets 

V.  Casborn,  Mortsifage 

Chalmer  or  Chalmers  v.  Bradley, 

Trusts  112'J.  1847. 

. V.  Stovil  or 

Storil,  Dower 
Cliam  and  Dover's  case.  Jointure 
Chamberlain  v.  Agar,  Trusts 
Chamberlain's  case,  Estate  for  Years 
Chamberlaine  v.  Chamberlaine, 

Trusts 

and  Ewer,  Life  Estate 

Chamberlayne  v.  Dummer,  Life  Estate  1040 
v.  Ewer,  Estate  for 


v.  Bluck,  Estate  for  Years 
v.  Brown,  Estate  Tail 
v.  Chapman,  Teimres 

,  Copj'holds 

V.  Flexman,  Mills 

,  Copyholds 

V.  G  ibson,  Copyholds 
V.  Sharpe,  Customary  Es- 
tates 

■  V.  Southwicke,  Rent 
V.  Spencer,  Commons 
V.  Tanner,  Trusts 

,  Dower 

Mortgage 


Chapman's  case,  Estate  Tail 
Charles  v.  Andrews,  Assets 

,  Dower 

,  Jointure 


1706 
1771 
2208 
1837 
1080 

1732  Charleton  v.  Charleton,  Life  Estate 
2211  jCharnoeh  v.  Worsley,  Curtesy 
1103|Chatfield  v.  Ruston,  Tithes 
1643iChave  v.  Calmel,  Tithes 
1862^Chedington's  case.  Estate  for  Years 
17  Cheedle  or  Cheedley  v.  Mellor,  Com- 


§455 

1415 

26 

677 

26 

179 

1004 

1130 

2223 

61 

1828 

1282 

984 

751 

91 

93 

770 

918 

2367 

257 

95 

1761 

1195 

2207a 

979 

59 

1195 

1218 

1040 

1114 

134 

134 

1478 


mon 
Clieesman  v.  Hardham,  Common 
Cheetham  v.  Hampson,  Common 
,  Rio-ht  to  Water 


V.  Leeds  (not  Leed),  Rent 


I  Chenie's  case,  Uses 
Cherrington  v.  Abney,  Right  to  Light, 

&c. 
Chester  v.  Chester,  Descent 

v.  Wilson,  Joint-tenancy 

Chesterfield  v.  Janson,  Trusts 
Chetham  v.  Williamson,  Mines 
I  Chetwood  v.  Crew,  Franchises 

1197  i  Chichester  v.  Bickerstaff,  Land  and 

1224 

1768 

1494 


1914 


1768 
1049 


Years 
Chambers  v.  Chambers,  Trusts 

V.  Plarvest,  Assets 

v.  Minchin,  Trusts 

Champcrnon's  case.  Uses 
Champion  v.  Rigby,  Trusts 
Chandler  v.  Melland,  Common 


1483 

1811 

42 

1848 
1670 


Money 

V.  Harvi'ood,  Franchises 

V.  Lethbridge,  Ways 

V.  Oxenden,  Fee  Simple 

Child  and  Bailey,  Estate  Tail 
.  Estate  for  Years 


V.  Wright,  Fee  Simple 

Chitty  V.  Parker,  Land  and  Money 
Cholmondeley  (M.)  v.  Clinton,  Trusts 

Mortgage 


280 
271 
280 
441 
203 
1663 

455 

2408 

2315 

1953 

99 

631 

62 

723 

102 

958 

998 

1478 

958 

72 

1731 

2211 


v.  Mayrick,  Powers  2008 

Chomley's  case.  Rent  107 

Chomley  v.  Humble,  Fee  Simple  965 

1955  Christian  v.  Corrcn,  Copyholds  918 

272.  276  [Christy  v.  Tancred,  Rent  257 


XXVI 


TABLE     OF     CASES. 


Chudlcigli's  case,  Copyholds  (j  746  822 

,  Uses         ]  605.  1G45. 1677 

,  Trusts 

,  Powers 

,  Remainders 

Church  V.  Cudmore,  Tenures 

V.  Wyatt,  Customary  Estates 

Churchill  v.  Grove,  Mortgage 

V.  Small,  Life  Estate 

Churchman  v.  Harvey,  Powers 
Chute's  case.  Offices 
Churchwarden's  (The)  case,  Estate 

for  Years 
Clarendon  v.  Plornsby,  Dower 
Clark  or  Clarke  v.  Calvert,  Rent 

V.  Cogg,  Right  of  Way 

V.  Crownshaw,  Fixtures 

v.  Gaskarth 

v.  Jennings,  Tithes 

V.  Pennyiathcr,  Copy- 


Clutterbuck  v.  Smith,  Trusts  §  17.26 

Clyatt  v.  Eattcnson,  Life  Estate  1037 

1821  Cob  or  Cobb  v.  Bctterson,  Copyholds        838 

20941 V.  Sclby,  Right  of  Way         372 

2332 1 V.  Stokes,  Rent  255 

534 V.  Stokes,  Tenancy  from 

23.35 1     Year  to  Year 

2260  Cobham  and  Brown's  case.  Franchises 
1036  Coble  v.  Allen,  Right  of  Way 
2013  Cock  v.  Cooper,  Estate  Tail 

534' V.  Stubbs,  Franchises 


j  Cocker  v.  Cowper,  Easements 

1451 ' V.  Quayle,  Trusts 

1150  Cockrel  v,  Cholmeley,  Trusts 
2,36  Cocksedge  v.  Fanshaw,  Prescription 
373  Codrinsrton  v.  Foley,  Powers 


holds 
Clarkson  v. 
Clarkson  v 
Clarkson  v 


Woodhouse,  Common 
Woodhouse,  Copyholds 
Woodhouse,  Prescription 
Clavcring  v.  Clavering,  Mines 
Clavcring  v.  Clavcring,  Powers 
Clay  V.  Tliackerah  or  Thackery,  Right 
of  Way 


24  Coke's  case.  Tithes 
236  Coke's  case,  Trusts 
135  Colburn  and  ^Monroe's  case,  Estate  for 

I     Years 
821  Cole  V.  Forth,  Waste 

V.  Foxraan,  Common 

V.  Green,  Waste 

V.  Levingston,  Remainders 

100' V.  Moore,  Trusts 

2066' V.  Rawlinson,  Fee  Simple 

j V.  Robins,  Estate  for  Years 

381 ! V.  Wade,  Powers 


1570 
631 
365 
986 
646 
519 
1951 
1953 
2420 
2086 
135 
1727 


320: 

8.59 1 
2419: 


1737 


V.  Wills,  Assets 


42,  43  V.  Wall,  Copyholds 

Colebrooke  v.  Elliot,  Franchises 


Clayton  v.  Aslidown,  Estate  for  Years  1291  C 

. V.  Blakcy,  Estate  for  Years        1276  Colegrovc  v.  Dias  Santos,  Fixtures 

Burtenshaw,  Estate   for  | v.  IManby,  Trusts 

1290  Coleman  or  Cohuan  v.  Portman,  Copy 


V.  uuriensnaw,  Estate 
Years 

V.  Cookes,  Copyholds 

Clayton  v.  Gregson,  Estate  for  Years 
Clecott  V.  Denys,  Offices 
Cleer  v.  Peacock,  Advowsons 
Clements  v.  Lambert,  Common 
Clements  v.  Scudamore,  Tenures 
Clements  v.  Scudamore,  Descent 
Clencii  v.  Cudmore,  Copyholds 

• v.  Withcrlcy  or  Wetiicrley, 

IMortgagc 
Clenncl  v.  Read,  Rent 
V.  Ticwthwaite  (note  Lcutli- 


1484 

2165 

271.  333 

2465 

2339 

1822 

961 

1414 

1980 

905 

637 

19.24 

1881 


916 
1279 
567 
131 
347 


holds 
Sorrel,  Trusts 
Winch,  Assets 


;  Coles  V.  Trecothick,  Trusts 
Collet  v.  Do  Golls,  Trusts 
794  CoUcy  v.  Stretton,  Estate  for  Years 
2407  CoUingwcod  and  Pace,  Escheat 
817  Collins  or  CoUings  v.  Barrow,  Rent 

I V.  Harding,  Rent  202.  210 

2202' V.  Harding,  ("opyholds  905 


864 
1806 
39 
1943 
1718 
1288 
2414 

206 


V.  Wakeinan,  Trusts 


waitc),  Trusts 
Clere  v.  13rooke,  Descent 
Sir  E.  Clerc's  case.  Uses 
Sir  E.  Clere's  case,  Powers 
Clerk  or  Clcrke  v.  Day,  Estate  Tail 
Clerk  or  Clerke  v,  Wentworth,  Copy- 
holds 

Clcrkson  v.  Bowyer,  Mortgage 
Clifford  V.  Burlington,  Estate  Tail 

V.  Burlington,  Jointure 

V.  Wicks,  Churclies 

V.  Wicks,  liigiit  to  Pew 

V.  Baring,  Dignities 

Clifton  V.  Burt,  Assets 

V.  Chancellor,  Franchises 

V.  Lombe,  Trusts 

V.  Molyneux,  Copyholds 

Clinan  v.  Cooke,  Estate  for  Years 
Clough  V.  Bond,  Trusts  1848, 

V.  Lambert,  Trusts 

Cloudslcy  V.  Pclham,  Trusts 
Clun's  case,  Rent  13, 


196 

Collinson  v.  Patrick,  Trusts 
1797  Colis  v.  Blackburn,  Trusts 
2105  Colston  v.  Gardner,  Powers 
161 6 'Colt  V.Coventry  (Bp.),  Advowsons 
2025;Colton  v.  Iloskins,  Powers 

988  v.  Smith,  Ways 

v.  Smith,  Waters 

888, 


I  Combe's  case.  Copyholds 
1 1  Combe's  case.  Estate  for  Years 
1 007  Comerford's  case.  Estate  for  Years 
1238  Commin  v.  Kinsmill,  Copyholds 
90. Compere  v.  Hicks,  Jointure 
481  'Compton  v.  Bearcroft,  Dower 

61 61 v.  Collinson,  Customary  Es- 

55 1     tales 
682  Coney's  case.  Common 
1771  Coney  v.  Bond,  Trusts 

828;Connelly  v.  Baxter,  Rent 
1291  Conner  v.  Browne,  Aspets 
,  1 908  Conolly  v.  Vernon,  Copyholds 
1932  Constable's  case.  Waters 
1771 .  Franchises 


193, 194  Conway  v 


Conway,  Powers 


1788 

1801 

1889 

2066 

123 

1973 

102 

109 

770 

1361 

1361 

916 

1258 

1121 

2360 
318 

1883 
206 
39 
908 
105 
657 

2089 


TABLE    OF    CASES. 


XXVil 


Coo  V.  Cawtliorn,  Common  §  318 

Cook  or  Cooke  v.  Arnham,  Powers        2011 

V.   Booth,  Estate  for 

Years  1525 

V.  Clayworth,  Estate 

for  Years  1413 
V,   Cook,   Joint-Ten- 
ancy                                                      2302 

V.  Crawford,  Trusts        1908 

,  Powers       1980 

V.  Fountain,  Trusts         17G3 

V.  Green,  Ways  102 

V.  Harris,  Rent  205 

V.  Hutcliinson,  Trusts  1777a 

V.  Soltau  (not  Soltan,) 

1835 
17 
78 
24 


Costigcn  V.  Hastier,  Mortgage 
Cotlier  V.  Merrick,  Rent 
,  Estate  for  Years 


Cotteene  v.  Missing,  Trusts 
Cotter  V.  Layer,  Jointure 

I ,  Powers 

Cotterell  v.  Gritiitiis,  Right  to  Light, 


§2215 

162 

1321 

1806 
1237 
2034 


&.C. 


-  V.  Purchase,  Trusts 

,  Mortgage 


463 
1731.  1955 
2202a 
1781 


Trusts 
Cooke's  case.  Fixtures 
Coolvson  V.  Coolison,  Land  and  Money 
Combe  v.  Beaumont,  Fixtures 
Cooper  or  Carrier  v.  Franklin,  Estate 

Tail  994 

,Uses,  1608. 1623 

V.  Barber,  Riglit  to  Water  419 

•  V.  Blandy,  Estate  for  Years       1425 

V.  Marshal!,  Common  323 

Cooper's  Company,  (The  Newcastle,) 

Franchises  698 

Coore  V.  Clare,  Copyholds  876 

Coot  V.  Besby,  Dower  1189 

Court  V.  Jackson,  Trusts  1785 

Cope  V.  Cope,  Assets  46 

,  iMortgage  2276 

Copeman  v.  Gallant,  Trusts  1934 

Coppin  V.  Coppin,  Assets  54 

V,  Fornyhough,  Trusts  1803 

,  Mortgage       2257'/ 

Corbet's  case.  Common  293 

,  Fee  Simple  968 

,  Uses  1640 

,  Estates  on  Condition       2134 

,  Remainder  2327 

Corbet  or  Corbett  v.  Barker,  Mortgage  2270 

V.  Corbet,  Jointure  1216.  1223 

^_  V.  Pesthall,  Copyholds         848.  914 

V.  Segrave,  Life  Estate  1043 

Corbin  v.  Corbin,  Uses  1633 

Cordal's  case.  Estate  Tail  after  &;c.       1067 
Corder  v.  Morgan,  Mortgage  2202 

Cordwell  v.  Mackrell,  Trusts       1801.  1811 
Cornbury  (Ld.)  v.  iMiddleton,  Trusts 

1710.  1719 
Cornish  v.  Mev/,  Life  Estate  1037 

Cornwallis's  (Ld.)  case.  Copyholds  873 

Corsellis  v.  Corsellis,  Dower,  1203 

Cort  V.  Birkbeck,  IMills  93 

V.  St.  David's  (Bp.,)  Advowsons       123 

Corwen's  case,  Heir-looms  16 

,  Trusts,  1887 

Corwen  v.  Pym,  Right  to  Pews  495 

Cory  V.  Gertclien,  Trusts  18S7 

Coryton  v.  Lythebye,  Mills  93 

,  Copyholds  770 

Cosh  V.  Loveless,  Copyholds  833 

Costard  and  WinorfielJ's  case,  or  Cos. 

tard  V.  Winfield,  Common  285.  343 

Costerd  v.  Wyndett,  Estate  for  Years     1340 
Costigen  v.  Hastier,  Estate  for  Years  1294 


Cottington  v.  Fletclier,  Trusts 
Cotton  v.  Cotton,  Jointure  1257 

Cotton's  Case,  Estate  Tail  975 

Couch  V.  Stratton,  Dower  1193 

Comiden  v.  Gierke,  Trusts  1776 

Courtenay  v.  Collet,  Right  to  Water         433 
Courtiiope  v.  Hayman,  Trusts  1719 

Court  and  Lambert,  Dower  1149 

Coutts  V.  Gorham,  Riglit  to  Light,  &c.     468 
Coventry    (Lady)   v.  Coventry    (Ld.,) 

Assets  46 

,  Estate  Tail         1007 

,  Jointure  1230 

V.  Hall,  Trusts  1948 

Cowlam  V.  Slack,  C'ommons  277 

Cowling  V.  Higginson,  Right  of  Way     376 
Cowpcr  V.  Clerk,  Copyholds  917 

V.  Cowper,  Trusts  1732 

,    Descent  2396 

Cox's  Creditors,  Assets  41 

Cox  or  Coxe  v.   Barnsley  or  Barnsly, 

Ancient  Demesne  928.  938 

-. ,    Statute  Merchant,  &.c.  2288 

V.  Chambcrlane,  Powers    2063 

V.  Day,  Rent  1756 

V.  Day,  Estate  for  Years  1377 

V.  Day,  Powers  1981 

V.  Ilightbrd,  Copj-holds        770 

V.  Ly  lie.  Trusts  1757 

V.   Matthews,    Right    to 


Light,  &c. 
Coxhead's  case.  Estate  Tail 
Crabb  v.  Bales  or  Bevis,  Copyholds 

V.  Crabb,  Trusts 

Crabtrcc  v.  Bramble,  Dower 

,    Trusts 

Crackclt  v.  Bethune,  Trusts 
Cramporn  v.  Freshwater,  Copyholds 
,  Estate   for 

years 
Crane  or  Craine  v.  Drake,  Mortgage 

.     V.  Holland,  Offices 

Cranmer's  case.  Remainders 
Crawford  v.  Powal,  OfHees 
Crawley  v.  Kingsmill,  Copyholds 

V.  Crawley,  Trusts 

Crawley's  case.  Life  Estate 
,Use3  1625. 


Crawshay  v.  Maule,  r^and  and  Money 

Cray  v.  VViilis,  Jointure 

,  Joint-Tenancy 

Creach  v.  Wilmot,  Commons 

Crewe  v.  Dickens,  Common 
I ,  Trusts 

Crichmere    v.  Paterson,    Estates     on 
1      Condition 
^Crickett  v.  Dolby,  Trusts 


456 
1010 

792 
1769 
1174 
17.59 
1923 

905 

1399 
2219 

560 
2337 

591 

770 
1716 
1032 
1693 
78 
1216 
2307 
95 

349 
1842 

2145 

1889 


XXVlll 


TABLE    OF     CASES. 


Cripps  V.  Gee,  Trusts  §  1781 

Crisp  V.  Churchill,  Rent,  258 

Crisp's  ease.  Next  Avoidance  127 

Crispe  v.  Bellwood,  Ways  102 

V.  Price,  Estate  for  Years  12^9 

Crocker    and    Kelsej,    Estate    Tail, 

after  &c. 
,  Estate  for  Years 


Croft  V.  Adam,  Powers 

V.  Powell,  Advowsons 

Crofiton  V.  Ormsby,  Trusts 
Cromer  v.  Burnett,  Copyholds 
Crompton  v.  North,  Trusts 
Cromwel's  case,  Rent 

' -,  Estates  on  Condition 

Cromwell  (Ld.)  v.  Andrews 


1067 
1328 
1959a 
120 
1798 
841, 
17921 
167' 
2141' 
196 
Crompe  v.  Barrow,  Powers  2047 

Crooke  V.  Brooking-,  Trusts  1764 

Crop  V.  Norton,  Trusts  1783 

Crosby  v.  Wadsworth,  Interest  in  Land  83  , 
Crosier  v.  Tomlinson,  Rent,  239 

Cross  V.  Addenbroke,  Land  and  Money     65 

V.  Faustenditch,  Powers  2068/» 

— —  V.  Hudson,  Powers  2025 , 

V.  Lewis,  Rigfht  to  Light,  &c.         450 

V.  Norton,  Trusts  1764; 

V.  Salter,  Riglit  to  Pews  4961 

Crossling-  v.  Crossling',  Powers  1959  j 
Crouch  V.  Foyer,  Titlies  «  140. 
V.  Stratton,  Jointure  1229 1 


Curtis  V.  Daniel,  Mines 

V.  Daniel,  Common 

V.  Daniel,  Copyholds 

V.  Mason,  Trusts 

V.  Wheeler,  Rent 

Curwcn  v.  Salkeld,  Franchises 
Curzon  v.  Lomax,  Manors 
Cusack  V.  Cusack,  Trusts 
Cutler  V.  Coxcter,  Assets 

V.  Creswick,  Franchises 

Cutterbulk  v.  Smith,  Assets 
Cutting  V.  Derby,  Rent. 

Dacre  v.  Nixon,  Franchises 

V.  Roper,  Fee  Simple 

Dagley  v.  Tolferry,  Trusts 
Daintry  v.  Daintrj',  Estate  Tail 
Dakin's  case,  Franchises 
Dakins  v.  Berisford,  Trusts 
Dalben  v.  Pullen,  Powers 
Dalliy  V.  Hirst,  Estate  for  Years 
Dale's  case.  Life  Estate 
Dalrymple  v.  Dn]r}'mple,  Dower 
Dalslon  v.  Reeve,  Estate  for  Years 
Daly  V.  Lynch,  Jointrire 
Danby  v.  Conyer,  Uses 

V.  Harris,  Fixtures 


Crowther    or    Crouther    v.    Oldfield, 

Common      274. 314 

,  Copyholds    860.  898 

Croydcn  Hosp.   Wardens)  v.  Farley, 

Franchises 
Crozier  v.  Crozicr,  Powers 
Crump  V.  Norwood,  Curtesy 
Cruse  V.  Barley,  Land  and  Money 
Crusoe   v.  Bugby,  Estate   for   Years 

1.388.  1508 
— .     E  tates  on  Condi- 


699 

1995 

1101 

79 


2189 
1771 


tion 
Cruwys  v.  Colman,  Trusts 
Cudliss  or  Cudlip  v.Rundall,  Estate  at 

Will  '  1545 

Cudmore  or  Edmore  v.  Raven,  Copy- 

holds  770 

Cullen  V.  Rich,  Mines  98.  101 

Cullen  V.  Tulfncl,  Fixtures  22 

Culley  V.  Doe,  Title  2381 

Culpepper  v.  Aston,  Trusts  1787'? 

Cumberford's  case.  Estate  for  Years     1370 
Cumberland's  (Countess)  case,  Tim- 
ber 26 
Cumberland's  case.  Copyholds                  852 
Cunliffo  V.  Cunliffe,  Trusts                       1774 


Cunningham   v. 


Moody,   Land   and 

Money 
Moody,  Curtesy 
Moody,  Powers 
Moody,  Customary 

Estates 
Moody,  Descent 


Curie's  case,  Offices 
Curling  v.  Mills,  Estate  for  Years 
Curtis  and  Cottel's  case,  Copyholds 
■  V.  Curtis,  Dower 


63 
1106 
2063 

2369 
2.395 
1541 
1284 
866 
1205 


^98 

323 

858 

1918 

223 

680 

88 

1809 

45 

646.  655 

42 

255 

642 
961 

1887 
980 
639 
1750 
1990 
1475 
1020 
1121 
1461 
1228 
1627 
24 
Danby 's  case.  Dower  1185 

Dancer  v.  Evett,  Copyholds  900 

Dand  v.  Kingseote,  Right  of  Way  371 

Dane  v.  Kirkwall,  Estate  for  Years        1447 
Daniel  or  Daniels  v.  Adams,  Dower       1186 

V.  Ardern,  Common  351 

V.  Davidson,  Trusts  1798 

V.  Davidson,  Mortgage  2257a 

Daniel  v.  Hanslip,  Common  329 

V.  NortI),  Hight  of  Way  380 

V.  North,  Right  to  Light  453 

V.  Ski|)worth,  Mortgage  2283 

V.  Uplcy,  Powers  1969 

V.   Waddington,    Estate    for 

Years  '  1404.  1516 

Dann  or  Danne  v.  Annas,  Powers  1982 

V.  Spurrier,  Estate 

for  Years  1308 

Danscy  v.  Griffiths,  Estate  Tail  981 

Darby  v.  Darby,  Trusts  1750 

Darcy  (Ld.)  v.  Askwith,  Mines  100 

V.  Lee,  Curtesy  1091 

V.  Blake,  Dower  1157,  1207 

Darcy's  case,  Franchises  731 

,  Waste  2468 

Darke  v.  Martin,  Trusts  1878 

Darlington  (E.)  or  Cavan  (Lady)  v. 

Pultency,  Estate  Tail     1012 

: — ,  Powers        1963 

Darnton  v.  Pigman,  Rent  198 

Dartmouth  (Lady)  v.  Roberts,  Tithes       135 
Dartnal  v.  Morgan,  Rent  257 

Daubeny  v.  Cockburn,  Powers     1996,  2055 
Davenport  v.  Aldis,  Remainders  2340 

V.  Bromley,  Commons  95 

Davcrs  v.  Folkes,  Election  77 

V.  Gibbs,  Lands  86 

Davidson  v.  Foley,  Trusts  1743 

Davie  v.  Bcardsham,  Trusts  1760 

Davie's  case,  Franchises  674 


TABLE    OF    CASES. 


XXIX 


Davies  or  Davis  v.  Barnett,  Mortgage  §  2231 

. V.  Cliurchinan,  Assets     45 

V.  Eyton,  Estate  for 

Years           1471.  1511 

V.  Fawkener,  Estate  i 

for  Years  1391 

. • V.  Gardiner,  Assets  46 

V.  Gyde,  Rent  196 

V.  Oliver,  Estate  for 

Years  1529 

V.  Povvcl,  Heir-looms  29 

. ,  Woods  and 

Trees  96 

,  Rent  235 

V.  Speed,  Uses 

1642.1677.  1689,1690 

V,  Stephens,  Riglit 

of  Way  380 

V.  Symonds,  Estate 

for  Years  1297 

V.  Thornycroft, 

Trusts  1755 

V.  Topp,  Assets  50 1 

V.  Weld,  Trusts  1913 

V.  Witts,   Right   to 

Pews  484 

Davis's  case,  Life  Estate  1032 

Davison  V.  Gill.  Ways  102 

V.  Stanley,  Estate  for  Years  1497 

Davy  V.  Burnsall,  Fee  Simple  951 

V.  Hooper,  Trusts  1804 

V.  Matthews,  Reversion  2349 

-  Pepys,  Assets  45 
Dawes  v.  Huddleston,  Waters  108 
Dawson  v.  Dell,  Dower  1194 

V.  Clark,  Trusts  1787a 

V.  Murray,  Trusts  1943 

V.   Norfolk   (D.),    Right    of 

Way  380.  495 

Day  V.  Bedingficld,  Right  to  Pews  49 

. V.  Bisbitch,  Fixtures  24 

. V.  Spooner,  Common  280 

V.  Trig,  Lands,  86 

Dayrell  v.  Hoare,  Powers  1996 

Deacon  v.  Smith,  Jointure  1232 

Dean  v.  Allaley,  Fixtures  22 

V.  Clayton,  Common  291.  320 

Dearie  v.  Hall,  Trusts  1883 
De    BeauYoir    v.    Welch,    Right    of 

Way  390 

Decharms  v.  Horwood,  Coparcenary  2296 

De  Chirton's  case,  Trusts  1727 
Deehurst  (Ld.)  v.  St.  Alban's  (D.), 

Trusts  1814 

Deeth  v.  Hals,  Land  and  Money  77 

Dcg  v.  Eeg,  Trusts  1765 

,  Powers  2075 

De  Grey  v.  Richardson,  Curtesy  1080 

Deloraine  V.  Brown,  Trusts  1730 

V.  Smith,  Trusts  1955 

Den  V.  Hopkinson,  Rent  193 

Dench  v.  Bampton,  Common  351 

^ v.  Bampton,  Copyholds  903 

Denliam  v.  Stephenson,  Francluses  632 

Denn  or  Denne  v.  Barnard,  Title  2382 

— — v,  Cartwright,  Estate 

for  Years  •  1277 


Denn   or   Denne    v.  Fearnside,   Fee 

Simple  §  951 

__ ,  Estate 

1362 

974 

1970 


for  Years, 
■  V.  Hobson,  Estate  Tail 
•  v.  Judge,  Powers 
,  Joint- 


tenancy 
•  V.  Mellor,  Fee  Simple 


—  V.  Roake,  Powers 


Dennis's  case.  Jointure 
Denny  v.  Leman,  Copyholds 
Dent  v.  Bennett,  Trusts 
Denton  v.  Davies,  Trusts 
v.  Denton,  Trusts 


2313 

959 

1994 

1218 

789 

193 

1767.  1785 

1856 


Derby   Canal   Company   v.  Wilmot, 

Franchises 
,  Estate  for  Years 


Derby    (E.)    v,  Taylor,    Estate    for 

Years 
Dcthick  V.  Bradbunie,  Rent 
v.  Caravan,  Assets 


Devall  V.  Dickens,  Powers 
Deverish  v.  Baines,  Trusts 
Devcse  v.  Pontet,  Jointure 
Devey  v.  Pace,  Trusts 
Devon  (D.)  v.  Atkins,  Assets 

v.  Cavendish  (Lady),  Powers 


Devon's  (E.)  case.  Dignities 
Devonsliire  (E.)  v.  Gibbons,  Waters 
Dewclas  or  Dowglass  v.  Kendal  Com 


705 
1418 

1388 

182 

42 

2059 

1769 

1247 

1827 

36 

2047 

610 

113 


mon 


295.  325 


Dicksey  and  Spencer's  case,  Estate 

for  Years 
Dickson's  case.  Franchises 
Digby  V.  Langworth,  Trusts 

V.  Legard,  Land  and  Money 

,  Trusts 


V.  Ex  parte.  Assets 


Digge's  case,  Powers 
Dighten  v.  Greenvil,  Estate  for  Years 
V.  Tomlinson,  Powers 


Dike  and   Dunstin's  case,  Right  of 

'Way 
Dikes,  Ex  parte.  Estate  for  Years 
Dillon  V.  Coppin,  Trusts 
Dillon  V.  Dillon,  Powers 

V.  Fraine,  Copyholds 

•,  Uses 


Dimes  v.  Scott,  Trusts 
Dimmock's  or  Dimock's  case.  Estate 
for  Years 

,  Uses 


1500 

672 

1792 

72 
1792 

47 
1964 
1480 
1964 

395 
1412 

1806 

2407 

822 

1608 

1885 

1346 
1696 


Dixon  V.  Dawson,  Land  and  Money    69,  72 


v.  Harrison,  Dower 
v.  James,  Common 

■  v.  Kershaw,  Advowsons 
•  v.  Olmius,  Trusts 

v.  Robinson,  Franchises 

■  V.  Saville,  Dower 
V.  Smith,  Rent 


1172 

350 

120.  129 

1751 

680 

1130.1173 

200 


Dobbins  v.  Bowman,  Powers  2059 

Docker  v.  Somes,  Trusts  1903 

Dod  or  Dodd  v.  Holme,  Easements  501 

v.   Monger    or    Morgan, 

Rent  246 
V.  Saxby,  Rent  200 


XXX 


TABLE     OF    CASES. 


Dodson  V.  Hay,  Curtesy 
Poe  V.  Alexander,  Rent 

—  V.  Appliii,  Estate  Tail 

—  V.  Archer,  Estate  for  Years 
Tenancy    from   Year 


§  1106 

251 

986 

1382 

to 

1587 

1282 

2361 


Doe  V.  D'Anvers,  Remainders 

—  V.  David,  Estate  ibr  Years 

—  V.  Davidson,  Common 

—  V.  Davies,  Commons 
Estate  for  Years 


Year 

—  V.  Ashburner,  Estate  for  Years 

—  V.  Askew,  Customary  Estates 

—  V.  Ballen,  Tenancy  from  Year  to 

Year  1594 

—  V.  B:irtliop,  Trusts  1832 

—  V.  Baytup,  Estate  for  Years  1425 

—  V.  Beard,  Estate  at  Will  1547 

—  V.  Bell,  Estate  for  Years  1276 
,   Tenancy   from   Year   to 

Year  1556 

—  V.  Benson,  Rent  193 

,  Estate  for  Years  1279 

,  Tenancy   from   Year   to 

Year 


1578 
176 
1508 
1629 
1829 
2317 


—  V.  Bcttison,  Rent 

—  V.  Bevan,  Estate  for  Years      1455. 

—  V.  Biggs,  Uses 
,  Trusts 

—  V.  Bird,  Tenancy  in  Common 

—  V.  Bluck,   Tenancy  from  Year  to 

Year  1570 

—  V.  Bond,  Estate  for  Years  1506 

—  V.  Boroughs,  Powers  2096 

—  V.  Bradbury,  Tenancy  from  Year  to 

Year  1571 

—  V.  Brightwcn,  Customary  Estates      2368 

—  V.  Britain,  Powers  2020 

—  V.  Brooke,  Tenancy  from  Year  to 

Year  1578 

—  V.  Buit,  Estate  for  Years  1299 

—  v.  Butcher,  Estate  for  Years  1383 

—  V.  Butler,  Tenancy  from  Year  to 

Year  1582 

—  V.  Calvert,  Tenancy  from   Year  to 

Year  1589 

—  V.  Carter,  Estate  for  Years      1455.  1510 

—  V.  Cavan  (Lady,)  Estate  for  Years    1378 

—  V.  Chaplain,  Tenancy  from  Year  to 

Year  1589 

—  V.  Cliaplin,  Joint-Tenancy  2308't 

—  V.  Clare,  Estate  for  Years  1287 

—  V.  Clark  or  Clarke,  Estate  for  Years  1419. 

14.)5 
,  Estate  at  Sufferance .  1599 


§  2324 

1511 

314.  340 

95 

1511 

2363 

1519 

1308 

.      .  ..  2301 

DobcU,  Tenancy  from   Year  to 

Year  1578 

Donovan,  Tenancy  from  Year  to 

Year  1579 

Dorvill,  Powers  2063 

Remainders  2339 


—  V.  Davies,  Title 
V.  Dickson,  Estate  for  Years 

—  V.  Dixon,  Estate  for  Years 
,  Coparcenary 


—  V.   Dunbar,    Tenancy   from    Year 

to  Year  1593 

—  V.  Durnford,  Tenancy  from  Year  to 
Year  1585 

—  V.  Dyson,  Rent  251 

—  V.  Edlin,  Trusts  1631 

—  V.  Edmonds,  Title,  2383 
V.  Elliot,  Tenancy  in  Common  2317 

—  V.  Ewart,  Trusts  1832 

—  V.  Fairclough,  Tenancy  from  Year 

to  Year  1590 

—  V.  Fenn,  Estate  for  Years  1 404 

—  V.  Fidlcr,  Estate  for  Years  1283 

—  V.  Field,  Trusts  1707.  1829.  1831 

—  V.  Fillis,  Tenancy  from   Year   to 

Year  1590 

—  V.  Fletcher,  Churches       .  90 

—  V.  Fomiercau,  Remainders,  2334 

—  V.  Forstcr,  Tenancy  from  Year  to 

Year  1582 

—  V.  Frith,  Title  2383 

—  V.  Frowd,  Estate  for  Years  1500 
Tenancy  from  Year  to 

1572 

1297 

1511 

177 


■         ,  Customary  Estates 

—  V.  Cockcll,  Estate"  for  Years 

—  V.  Collins,  Lands 
,  Houses 


2356 

1419 

87 

89 

988 


Year 

—  V.  Galloway,  Estate  for  Years 

—  V.  Galliers,  Estate  for  Years 
-  V.  Giffard  or  Gilford,  Rent 
. ,  Estate   for 


Years 


Pow 


crs 


1379 
2097 
2096 


—  V.  Collis,  Estate  Tail 

—  V.  Constable,  Tenancy  from  Year  to 

Year  1502 

—  V.  Cooper,  Estate  Tail  983 
_  V.  Creed,  Rent  176 

,  Estate  for  Years  1379 

— ,  Tenancy  from   Year   to 

Year  1573 

—  V.  Crick,  Tenancy  from  Year  to 

Year  1585 

—  V.  Culliford,  Tenancy  from  Year  to 

Year  1578 

—  V.  D'Anvers,  Customary  Freeholds    921 


V. 
V. 

V. 

•  V. 
■  V. 

•  V. 


—  V.  Gilbert,  Powers 

—  V.  Goldwin,  Tenancy  from  Year  to 

Year  1578 

Gonsill,  Title  ^  2383 

Green,  Tenancy  from  Year  to 

Year  1577 
Greciil'.ill,  Statute  Merchant,  &c.  2288 
Gregory,  Title  2383 
Groves,  Estate  for  Years  1283 
Grubb,  Estate  for  Years  1500 
,  Tenancy  from   Year  to 

Year  1572 

—  V.  Gurncll,  Dower  1 149 
_  V.  Hare,  Rent  196 

—  V.  Harris,  Tenancy  from  Year  to 

Year  1582 

—  V.  Harvey,  Estate  for  Years    1361.  1366 

—  V.  Hazell,  Tenancy  from   Year  to 

Year  1580 

—  V.  Heneage,  Uses  1667 
_  V.  Hilder,  Right  of  Way  382 

—  v.  Haley,  Estate  for  Years  1419 


TABLE     OF    CASES. 


XXXI 


Doe  V.  Howard,  Tenancy  from  Year  to 

Year  §  1581 

—  V.  Hajrlics,  Tenancy  from  Year  to 

Year  1588 

—  V.  Hnline,  Tenancy  from  Year  to 

Year  1588 

—  V.  Humplirey,  Tenancy  from  Year 

to  Year  1595 

—  V.  Ilutton,  Assets  30.  35 

—  v.  Injrlis,   Tenancy   from  Year  to 

Year  158G 

—  V.  Jackson,  Customary  Freehold  921 
•,  Tenancy  from  Year  to 

1586 
2383 

134 
2004 

154 


—  V. 

—  V. 

V. 

V. 

V. 


V. 

V. 

V. 

V. 

V. 

-  V. 


Year 
Jauncey,  Title 
Jefferson,  Tithes 
Jesson,  Powers 
Johnson,  Rent 
Jolmstone,  Tenancy  from  Year 

to  Year 
Jones,  Dower 

,  Estate  at  Will 

,  Trusts, 

,  Descent 

Keen,  Title 

Kemp,  Ways 

Kightley,  Tenancy  from  Year  to 

Year 
Knight,  Trusts 
Lambley,  Tenancy  from  Year  to 

Year 
Laning,  Estate  Tail 
Life  Estate 


—  V. 


Lawder,  Tenancy  from  Year  to 

Year 
Lawrence,  Estate  for  Years 
Lea,  Estate  for  Years 

,  Tenancy   from   Year   to 

Year 
Liglitfoot,  Mortgage 
Lloyd,  Rent 
Lucan,  (E.)  Lands 
Lucas,  Tenancy  from  Year  to 

Year 
Luxton,  Life  Estate 
Lyde,  Estate  for  Years 
Marchetto,  Estate  for  Years 
Martin,  Lands 

■-,  Life  Estate 


1584 
1169 
1547 
1934 
2393 
2377 
102 

1578 
1932 

1583 

991 

1031 

1571 

1502 
1279 

1580 

2229 

175 

86 


V.  Masters,  Rent 

V.  Meyler  or  Meylor,  Rent 

,  Estate   for 

Years 
V.  ]\Iilbourne,  Powers 
r.  Mihvard,  Tenancy  from  Year  to 

Year 
V.  Mitchell,  Rent 
V.  Mizem,  Tenancy  from   Year  to 

Year 
■  V.  M'Kaeg,  Estate  at  Will 
V.  Moore,  Tenancy  from  Year  to 
Year 

Remainders 


1593 

1055 

1479 

1506 

87 

1055 

251 

177.  214 


■  V.  I\lulliner,  Commons 
V.  Murrell,  Commons 
V.  Nicholls,  Trusts 
V.  Norton,  Lands 


Doe  V.  Oxcnham,  Rent 
,  Title 

—  V.  Palmer,  Tenancy  from  Year  to 

Year 

—  V.  Parker,  Estate  for  Years 
,  Tenancy  from  Year  to 

Year 

—  V.  Pasquali,  Estate  for  Years 

—  V.  Parratt,  Mortgage 

—  V.  Pcarsey,  Commons 

—  V.  Perryn,  Estate  Tail 
,  Remainders 


—  V.  Pitman,  Estate  for  Years 
Ways 


—  V.  Polgreen,  Estate  for  Years 

—  V.  Porter,  Chattels  Real 
,  Tenancy  from  Year  to 

Year 

—  V.  Powell,  Estate  for  Years 

—  V.  Price,  Estate  at  Will 

—  V.  Pritchard,  Estate  for  Years 

—  V.  Posser,  Title 

—  V.  Pullen,  Tenancy  from  Year  to 

Year 

—  V.  Quigley,  Tenancy  from  Year  to 

Year 

-,  Estate  at  Sufferance 


—  V.  Ramsbottom,  Estate  for  Years 

—  v.  Raffan,  Tenancy  from  Year  to 

Year 

—  V.  Read,  Tenancy  from  Year  to 

Year 

—  V.  Reason,  Life  Estate 

—  V.  Reed,  Right  of  Way 

—  V.  Rendle,  Estate  for  Years 

—  V.  Rivers,  Curtesy 

—  V.  Robinson,  Life  Estate 

—  V.  Rock,  Tenancy   from   Year  to 

Year 

—  V.  Roe,  Ancient  Demesne 
,  Tenancy   from   Year   to 

Year 

—  V.  Rogers,  Rent 

—  V.  Samuel,  Tenancy  from  Year  to 

Year 

—  V.  Sandham,  Rent 
,  Estate  for  Years 


H38 
2383 

1595 
1500 

1572 

1500 

11 

95 

982 

2333 

1500 

102 

1430 

7 

1568 
1428 
1547 
1416 
2380 

15G6 

1571 

1599 
1426 

1580 

1590 
1030 
380 
1372 
1079.1100 
1056 

1566 
926 


?ayc 


1709, 


1373 
1991 

1584' 
228: 

1590 
1547 

15G9 

2335 

95 

94 

1833 

67 


Tenancy  from  Year  to 
Year 

—  V.  Scott,  Title 

—  V.  Scudamore,  Curtesy 
,  Estates   on    Condi- 
tion 

—  V.  Scaton,  Estate  for  Years 

—  V.  Sliort,  Mortgage 

—  V.  Simpson,  Trusts 

—  V.  Skirrow,  Estate  for  Years 

—  V.  Smitli,  Estate  for  Years 


1566 
176 

1583 

202 
1378 

1571 

2380 
1101 

2152 
1427 
2228 
1832 
1427 
1455. 
1511 


,  Tenancy  from  Year  to 

Year  15C6.  1587 

—  V.  Snowden,  Tenancy  from  Year  to 

Year  1581 

—  V.  Sjnller,  Tenancy  from  Year  to 

Year  1591 

—  V.  Stanion,  Tenancy  from  Year  to 

Year  1572 


XXXll 


TABLE    OF    CASES. 


Doe  V.  Staple,  Trusts  §  1836. 

—  V.  Steel,  Tenancy   from   Year   to 

Year 

—  V.  Stennett,  Estate  at  Will 
-,  Tenancy  from  Year 


—  V, 


to  Year 
Stratton,  Tenancy  from   Year 

Year 
Street,  Tenancy  from  Year  to 

Year 
Sturges,  Estate  for  Years 
Summerset,  Tenancy  from  Year 

to  Year 
Sybourne  or  Syburn,  Estate  for 

Years 

,  Trusts 


Terry,  Estate  for  Years 
Thomas,  Advowsons 
Tliompson,  Estate  at  Will 

,  Tenancy  from  Year 

to  Year 
Thorlcy,  Powers  1984. 

Tomkinson,  Powers  198L), 

Turner,  Estate  at  Will 
Vince,  Tenancy  from  Year  to 

Year 
Wainewright,  Remainders 
Walbank,  Trusts 
,  Walford,  Powers 
Walker,  Estate  for  Years 

,  Tenancy  from  Year  to 

Year 
V.  Walters,  Tenancy  from  Year  to 

Year 
V.  Wandlass,  Rent 

■  V.  Ward,  Estate  for  Years 
•  V.  Watkins,  Tenancy   from  Year 

to  Year 

■  V.  Watts,  Estate  for   Years 


Tenancy  from  Year  to 
Year  15G6. 


—  V.  Weller,  Rent 

—  V.  Weller,  Estate  for  Years 
,  Tenancy  from  Year  to 

Year 
. ,  Powers 

—  V.  Wetton,  Estate  Tail 

—  V.  Wharton,  Trusts 

—  V.  Wliitroe,  Estate  for  Years 

—  V.  Whittiek,  Estate  for  Years 
,  Tenancy  from  Year 

to  Year 

—  V.  Wiggans,  Estate  for  Years 

—  V.  Wilbn,  Trusts 

—  V.  Wilson,  Powers 

—  V.  Wightman,  Tenancy  from  Year 

to  Year 

—  V.  Wilkinson,  Estate  at  Sufferance 

—  V.  Williams,  Lands 

■ ,  Tenancy  from  Year 

to  Year 


1935 

1595 
1547 

1569 

1570 

1593 
1395 

1589 

1383 
1935 
1419 
131 
1564 

1574 
.  2060 
.2059 

1564 

1.580 
2340 
1831 

1998 
1488 

1805 

1590 

251 

13b3 

1581 
1381 
1383 

1569 

193 

1381 

1565 
2004 
981 
1935 
1426 
1500 

1572 

1288 
1831 
2097 

1583 

1599 

86 


Doe  V.  W^ocdman,  Tenancy  from  Year 


to  Year 

—  V.  Wright,  Trusts 

—  V.  Wrost,  Trusts 
Dolin  V,  Coltman,  Dower 
Dolman  v.  Smith,  Assets 
Donellan  v.  Read,  Rent 
Doneraile   v.  Cliartres,    Estate    for 

Years 
Donne  v.  Lewis,  Assets 
Dore  V.  Gray,  Waters 
Dorking  Market  case,  Franchises 
Dormer's  case.  Rent 
Dormer  v.  Fortescue,  Dower 
-,  Trusts 


V.  Tiiurland,  Powers 


§1592 

1836 

1935 

1185 

49 

151 

1528 

50 

113 

694 

251 

1207 

1948 

2001 

1923 

211 

427 

1461 

2116 

858 

80 

509 

1845 

2049 

102 

37 

848 

837 

1869 

135 

Downhill  v.  Fletcher,  Dower  1201 

Downing  v.  Seymour,  Estate  for  Years  1434 


to 


for 


Doruford  v.  Dornford,  Trusts 
Dorrel  v.  Andrews,  Rent 
Dorset    (D.)  v.  Girdler,  Right 

Water 
Doubilotle   v.   Curteene,    Estate 

Years 
Douce  V.  Torrington,  Powers 
Douglas  V.  Kendal,  Copyholds 
Douglass  V.  Whitney,  Heir 
Dovaston  v.  Pa^-ne,  Easements 
Dove  V.  Everard,  Trusts 
Dover  V.  Alcxaiulcr,  Powers 
Doverton  v.  Brown,  Ways 
Dowdale's  case,  Assets 
Dowdswcll  V.  Dowdswcll,  Copyholds 
Down  V.  Hopkins,  Copyholds 
Downes  v.  Grasebrook,  Trusts 
V.  Moorman,  Titiies 


■  V,  Wilson,  Commons 

— ,  Estate  for  Years 


1321. 

—  V.  Wombwell,  Tenancy  from  Year 

to  Year 

—  V.  Wood,  Mines 


1573 

95 

1375 

1582 
100 


j  Downingham's  case.  Copyholds 
;Downshire  v.  Sandys,  Life  Estate 
1  Dowse  V.  Dcrivall,  Trusts 
[  Dowser  v.  Bell,  Dower 
I  Dowlie's  case.  Estate  at  Will 
I  Doyle  V.  Blake,  Trusts 
Doylcy  v.  Atl.-Gen.  Powers 
Drake  v.  Munday,  Rent 
Drake  v.  Munday,  Estate  for  years 
Drake  v.  Wylenworth,  Mills 
Drake  ford  v.  Wilkes,  Trusts 
Draper  v.  Zoucli,  Copyholds 
Drayson  v.  Pocock,  Trusts 
Drew  V.  Bayly,  Estate  for  Years 
Drewell  v.  Towlcr,  Easements 
Drcwett  v.  Sheard,  Right  to  Water 

Drinkwater  v.  Porter,  Ways 

Driver  v.  Edgar.  Estate  Tail 

Driver  v.  Thompson,  Powers 

Droney  v.  Archer 

Drowt's  case,  Rent 

Drowt's  case.  Estate  for  Years 

Druce  v.  Denison,  Trusts 

Drue  V.  Baylic,  Estate  for  Years 

Drury  v.  Drury,  Dower     - 

V.  Drury,  Jointure  1215 

V.  Ditch,  Estate  for  Years 

v.  Kent,  Common 

V.  Kent,  Estate  for  Years 

V.  Man,  Copyholds 


908 

1040 

1741 

1199 

1548 

1842 

1980 

157 

1283 

93 

1768 

914 

1827 

1433 

510 

421, 

422 

102 

984 

1966 

1123 

13 

1437 

1769 

1397 

1176 

1235 

1412 

329 

1163 

786 


TABLE    OF     CASES. 


XXXIU 


Drybuttcr  v.  Bartholomew,  Interest 

Land  ^  83 

Duberley  v.  Page,  Common  320 

Duberlcy  v.  Page,  Copyholds  860 

Duck  V.  Braddyll,  Fixtures  24 

Duck  V.  Braddyll,  Rent  199 

Dudficld  V.  Andrews,  Franchises  633 

Dudley  v.  Audloy,  Dower  12 

Dudley  v.  Ward  (Ld.),  Fixtures  21 

Dug-ar  V.  Norton,  Estate  for  Years  1392 
Dug  worth  V.  Radford,  Copyholds  871 

Dumas,  Ex  parte,  Trusts  1822 

Dumnier  v,   Chippenham   (Corp.), 

Francliises  711 

Dununer  v.  Chippenham,  Trusts  1824 

Dummer  v.  Syms,  Franchises  704 

Dumper's  case.  Estate  for  Years  1351.  1512 
Dunbar  v.  Tredennick,  Trusts  1798.  1821 
Duncan. V.  Meicleham,  Rent  247 

Dunconibe's  case.  Ways  102 

Duncombe  or  Dncomb  v.  Duncomb, 

Dower  112 

V.  Mayer,  Life  Estate         1036 

V.  Mayer,  Trusts  1«00 

V.  Randall,  Right  to  Water   408 

169 

1288 

1547 

917 

691 


Dunk  V.  Hunter,  Rent 

V.  Hunter,  Estate  for  Years 

V.  Hunter,  Estate  at  Will 

Duun  V.  Allen,  Copyholds 
Dunstable's  (Prior)  case.  Franchises 
Dunstan  or   Danster  v.  Tresider, 

Houses 
Dunstan  or  Dunster,  Copyholds 
Duplcsis  V.  Att.-Gen.  Trusts 
Duppa  V.  Mayo,  Rent 
Durham's  (Bp.)  ease,  Waste 
Durnford  v.  Lane,  Jointure 
Durnford  v.  Lane,  Powers 
Duroure  v.  Motteux,  Land  and  Money 
Dutch,  W.  J.  Ca.  V.  Van  Moyscs, 

Franchises 
Dutch,  W.  J.  Ca.  V.  Van  Moyscs, 

Trusts  1787^/, 

Dutton  V.  Taylor,  Right  of  Way      373 


Dyer  v.  Awsiter,  Powers 

V.  Dyer,  Trusts 

V.  Sweeting,  Mortgage 

Dyke  v.  Ricks,  Conditions 
Dynioke  v.  Hobart,  Mortgage 

Eade  v.  Eade,  Trusts 
Eales  V.  England,  Trusts 
East  V.  Harding,  Copyholds 
East  Grimstcad  case.  Trusts 
Eastcourt.     See  Estcourt. 
Eastwood  V.  Winke,  Copyholds 
Eastwood  V.  Winke,  Jointure 
Eaton  V.  Jacques,  Rent 

V.  Southby 

Eavers  v.  Skinner,  Copyholds 
Ebrand  v.  Dancer,  Trusts 


89 

769 

1825 

13.  194 

2470 

1228 

1973 

73 

711 

1794 

,386 
1986 
1782 
22406 
2129 
2226 

1774 
1137,  1771 

849.  877 
1800 

812 
1246 
205 
240 
861 
1786 


Ecclesiastical  Persons'  case,  Estate 

for  Years  1335 

Eccleston  v.  Berkley,  Dower  1210 

Edcnborough  v.  Canterbury  (Archbp.), 
Trusts  1930 

Edge  V.  Strafford  Estate  for  Years         1277 
October,  1846. — C 


Edgington  v.  Morris,  Right  of  Way  §  375 

Edwards  V.  Applcbec,  Estate  Tail  1007 

V.  Applebcc,  Mortgage  2238 

■    V.  Edwards,  Powers  2077 

V.  Freeman,  Assets  47 

V.  Freeman,  Uses  1638 

V.  Hammond,  Remainder  2335 

■    V.  Hctherington,  Rent  206 

V.  Hctherington,  Tenancy 

from  Year  to  Year  1574 

V.  Jones,  Trusts  1806 

V.  Moseley,  Copyholds  833 

V.  Slater,  Estate  for  Years  1480 

V.  Slater,  Powers  19G1,  2019 

V.  Warwick,  Land  and  Money,    61 

V.  Warwick,  Estate  Tail  992 

Edwin  V.  Thomas,  Descent  2408 

Egleton's  case,  Tenures  746 
Egremont  (Ld.)  Fulman,  Right  to 

Water  423 

Eire's  case.  Estates  on  Condition  21 89 

Eland  v.  Eland,  Dower  1200 

Eldridge  v.  Knott,  Copyholds'  776 
Ellard  v.  Llandaff  (Ld.),  Estate  for 

Years  1529 

Elliot  or  Eliot  v.  Edwards,  Mortgage  2207a 

V.  Ehot,  Trusts  1777/; 

Elliotson  V.  Fectham,  Easements  528 

,  Nuisance  2464 

Ellis  V.  Arncson,  Commons  d5 

V.  Ellis,  Estate  Tail  981 

V.  Fermor,  Common  310 

V.  Guavas,  Mortgage  1 1 .  2278 

V.  Nimmo,  Trusts  1806 

V.  Rowlcs,  Common  350 

V.  Ruddle,  Offices  587 

Ellison  V.  Ellison,  Trusts  1806 

Elmer's  case.  Estate  for  Years  1365 

Elmor  V.  Geale,  Estate  for  Years  1 333 

Else  V.  Osborn,  Trusts  1817 

Elton  V.  Elton,  Estates  on  Condition  2157 

Elves  V.  York,  (Archbp.),  Reversion  2346 

Ely  (Bp.)  V.  Kenrick,  Common  95 

,  Copyholds  915 

V.  (Dean,  itc.)  v.  Warren,  Common  273 

Emblyn  v.  Freeman,  Land  and  Money      72 

Emerson  v.  Inchbird,  Assets  33 
Emertou  V.  Selby,  Common               270.  278 

Emery  V.  Grocock,  Trusts  1835 

Emot's  case,  Rent  214 

lEmson  V.  Williamson,  Right  of  Way  388 

Emperor  v.  Rolfe,  Powers  2087 

England  v.  Slade,  Estate  for  Years  1427 

, ,  Trusts  1834 

Englcficld's  ease.  Franchises  665 

,  Powers  1964 

Ensden  and  Denny's  case.  Estate  for 

Years  1333 
Enys  v.  Donithorne,  Estate  for  Years    1304 

Erish  V.  River,  Estate  for  Years  1.399 

Estcourt  V.  Estcourt,  Jointure  1228 

and  Weeks,  Copyholds  877 

,  Estate  for  Years  1501 

Estoffte  V.  Vaughan,  Uses  1662 

Eton  College  v.  Beauchamp,  Rent  207 

Euro  V.  Wells,  Franchises  631 

Eustace  v.  Scawen,  Joint- tenancy  2315 


XXXIV 


TABLE    OF    CASES. 


Evans  V.  Astley,  Estate  Tail 

V.  Bicknell,  Trusts 

V.  Cogan,  Life  Estate 

V.  Eliot,  Rent 

V.  Helicr,  Trusts 

V.  Massey,  Trusts 

V.  Roberts,  Interest  in  Land 

V.  Ehomas,  Estate  for  Years 

V.  Vaughan,  Estate  for  Years 

V.  Walshe,  Estate  for  Years 

Evelin  v.  Davies,  Francliises 


^  984  Fereyes  v,  Robertson,  Estate  for  Years 
18801  §  147D 

1043  Ferguson  v.  Cornish,  Estate  for  Years 
231 1  1308. 

1 7 1 G V.  Tedman,  Trusts 


1888  [Feme's  (Dean)  ease,  Advowson 
83iFerrand  v.  Ramsay,  Uses 


1286 

1318 

1531 

653 


Evelyn  v.  Chicliester,  Estate  for  Years  1444 


Evelyn,  Assets 
,  Powers 


47 
2011 

905 
2357 

793 


1521 
1761 
126 

1685 
1798 
1482 
1663 
51 


Ever  V.  Aston,  Copyholds 

Everall  v.  Sinalle,  Customary  Estates 

Everest  v.  Glynn,  Copyholds 

Ewer  V.  Estwickc,  Customary  Estates  23G8 

V.  Clifton,  Rent  196 

V,  Corbet,  Estate  for  Years  1457 

v.Moyle,  Rent  210 

Excester  (E.)  v.  Smith,  Common  351 

Exel  V.  Wallace,  Estate  Tail  981 

V.  Wallace,  Estate  for  Years  1479 

V.  Wallace,  Trusts  1 808 

Exton  V.  Scott,  Trusts  1932 

Eyre  v.  Dolphin,  Trusts  1803 

V.  Dolphin,  Mortgage  2257i 

V.  Shaftesbury,  (E.)  Powers  1975a 

Eyslone  v.  Studde,  Jointure  1263 


Fairclaim  v.  Shacklcton,  Tenancy  in 

Common 
Fairftix  v.  Derby,  Estate  Tail 

V.  Gra}',  Rent 

Fairman  v.  Green,  Trusts 

Fairtitle  v.  Gilbert,  Estate  for  Years 


Ferrars  v.  Cherry,  Trusts 

Ferrers  v.  Fermor,  Estate  for  Years 

V.  Fermor,  Uses 

Feverstone  v,  Secllc,  Assets 
Field  V.  Boothsby  or  Boothby,  Copy- 
holds 831,  869 
Fielder  v.  Fielder,  Dower  1123 
Fielding  v.  Winwood,  Copyholds  918 
Filewood  v.  Palmer,  Copyholds  917 
Finch  V.  Finch,  Trusts  1786 
V.  Throckmorton,  Estates  an  Con- 
dition 2198 
V.  Tucker,  Estate  Tail  *  997 
V,  Winehelsea,  Life  Estate  1056 
V.  Winchelsea,  Estate  for  Years  1479 
V.  Winchelsea,  Trusts         1712.  1822 


Finch's  case,  Manors 

,  Advowsons, 

,  Estate  for  Years 


— ,  Estate  at  Sufferance 


2317 
1008 

231 
1889 
1423 
1301 

173 
1516 
2362 
2041 


Fallon,  Ex  parte.  Estate  for  Years 
Falstaft" 's  case,  Rent 
Farington's  case.  Estate  for  Years 
Farley's  case,  Customary  Estates 
Farmer  v.  Bradford,  Powers 

V.  Grant  or  Hunt,  Common  317.  320 

V.  Wise,  Fee  Simple  961 

Farrance  v.  Elkington,  Rent  256 

Farrant  v.  Lovcll,  Mortgage  2218 

Farrer  v.  Billing,  Commons  95 

Farrers  or   Ferrer  v.  Miller,  Ancient 


Fines  v.  Cobb,  Commons 

Finlay  v.  Howard,  Trusts 

V.  Howard,  Powers 

Fish  V.  Klein,  Trusts 

■  v.  Rogers,  Copyholds 

Fisher  v.  England,  (Bank)  Powers 
Forbes,  Dower 
Forbes,  Jointure 

Prosser,  Tenancy  in  Common  2317 
Smith,  Uses  1634 

Wigg,  Copyholds  785 

Wigg,  Uses  1660 

Wigg,  Tenancy  in  Common   2319 
Wren,  Common  274.  297 

656 
800 


V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 


88 

lis 

1396 
1602 

351 
1827 
2109 
1825 

797 
2060 
1161 
1249 


Demesne 
Faversham  Charities,  In  re.  Trusts 
Fauntlcroy,  In  re.  Trusts 
Fawcett  v.  Lowther,  Copyholds 
V.  Strickland,  Common 


937 
1827 
1827 

780 
302 

1885 


Fearns  v.  Young,  Trusts 

Featherstonhaugh  v.  Fcnwick,*Trusts  1802 

Fell  v.  Brown,  Mortgage  2283 

—  V.  Chamberlain,  Estate  for  Years  1279 
Fellowcs  v.  Mitchell,  Trfists  1951 
Fenn  v.  Marriott.  Customary  Freeholds  922 

V.  Smart,  Reversions  2353 

Fenny  or  Fenney  v.  Child,  Copyholds  876 
V.  Child,  Estate  for 

Years  1307 

Fenny  v.  Durrant,  Dower  1153 

Fentinian  v.  Smith,  Easements  518 

Fenton  v.  Logan,  Rent  238 

Fenwick  v.  Mitforth,  Uses  1644 


Fishlake's  case.  Wreck 
Fitcii  V.  Hockley,  Copyholds 
Fitcliet  V.  Adams,  Estates  on  Condi- 
tion 
Fitzgerald  v.  Fauconbridgc  or  Faucon 
berg,  Trusts 

V.  Fauconbridgc  or  Faucon- 

bcrg.  Powers 
Fauconbridgc  or  Faucon- 

berg,  Mortgage 
Jervoise,  Trusts 
.Marshall,  IMills 
O'Connell,    Estate    for 

Ycr.rs 
Rainsford,    Estate    for 
Years 

In  re.  Estate  for  Years 

Fitzherbcrt  V.  Shaw,  Fixtures 

Fitzwaltcr's  case.  Waters 

Fitzwilliam's  case,  Powers 

Flanagan  v.  Flanagan,  Land  and  Money  74 

Fleetwood's  case.  Estate  for  Years         1477 

,  Trusts,  1748 

Fleming  v.  Gooding,  Estate  for  Years    1425 
Fletcher  v.  Ashburncr,  Land  and  Money 

6174 


V. 

V. 

V. 

-V. 

V. 


2190 

1777a 

1965 

2258 

1759 

93 

1526 

1534 

1412 

19 

108 
2070 


TABLE    OF    CASES. 


XXXV 


Fletclicr  v.  Ingram,  Franchises  §  648 

■    V.  Smiton,  Fee  Simple  958 

Flight  V.  Thomas,  Ri;?ht  to  Light  452 

Floyd  V.  Bucklaud,  Estate  for  Years  1291 

Floycr  v.  Las'ington,  Mortgage  2202r/ 

Focus  V.  Salisbury,  Estate  for  Years  1480 

Foiston  V.  Crachrode,  Common  274 

Foley,  Ex  parte,  Powers  2111 

V.  Burncll,  Estate  Tail  998 

V.  Burnell,  Trusts  1818 

V.  Parry,  Trusts  1775 

Folkard  v.  Hemmett,  Common  315 

V.  Hemmett,  Copyholds  855 

Folkinffham  v.  Crofl,  Estate  for  Years  1509 


Follett  V.  Follett,  Powers 

V.  Troake,  Customary  Free. 

holds 
Foone  V.  Blount,  Trusts 
Foot  V.  Salway,  Estate  for  Years 
Forbes  v.  Ross,  Trusts 

V.  Wilson,  Copyholds 

V.  Wilson,  Waste 


1983a 


Ford  V.  Gray,  (Ld.)  Joint-tenancy 

V.  Gray,  Title 

V.  Hoskins,  Copyholds 

•  V.  Peering,  Jointure 

V.  Peering,  Trusts 

Forder  v.  Wade,  Dower 
Fordiee  v.  Willis,  Offices 
Forrester  v.  Leigh,  Assets 
Forsight  V.  Grant,  Jointure 
Forster  v.  Forstcr,  Life  Estate 
Forth  V.  Chapman,  Annuity 

V.  Chapman,  Estate  Tail 

Fort  V.  Ward,  Common 

V.  Ward,  Copyholds 

Fortescue  v.  Barnett,  Trusts 

V.  Hcnnah,  Jointure 

Fortrey  v.  Fortrey,  Assets 
Fory  V.  Fory,  Assets 
Foskcw's  case.  Estate  Tail 
Eoster  V.  Blagden,  Assets 

V.  Cook,  Assets 

V.  Cook,  Dower 

V.  Deacon,  Trusts 

V.  Hale,  Trusts 

V.  Hall,  Estate  for  Years 

V.  Mount,  Trusts 

V.  Pitfall,  Jointure 

V.  Romney,  Uses 

V.  Spooner,  Estate  for  Life 

Foster's  case.  Ways 

Fothergill  v.  Forthergill,  Jointure 

V.  Forthergill,  Powers 

V.  Kendrick,  Mortgage 

Fountain  v.  GoocIl,  Estate  Tail 
Fowkes  V.  Joyce,  Rent 

Fowler  V.  Dale,  Common 

V.  Nortli,  Powers 

V.  Sanders,  Right  of  Way, 


Foxton  and  Colston,  Copyholds 
Frampton's  case.  Uses 
Frances  v.  Ley,  Heir-looms 

V.  Ley,  Easements 

Francis  v.  Doe,  Estate  for  Years 

V.  Wyatt,  Rent 

Franeum  or  Frankum  v.  Falmouth 

(E.),  Waters 
Frank  v.  Standish,  Election 
Franklin's  case,  Estate  Tail 
case.  Powers 


§874 

1636 

16 

499 
1425 

239 

406. 439 
2431 

994 
1982 
2180 
1480 

742 
1532 

910 


923 
1759 
1279 
1905 

851 
2467 
23U8 
2375 
792.  913 
1248 
1899 
1174 

587 

56 

1246 

1056 

264 

981 
332.  343 

897 

1806 

1243 

35 

58 

1010 

58 

58 

1195 

1760 

1764 

1291 

1769 

12G4 

1640 

1045 

102 
1238 
2011 
2252 

984 

2.38 

282 

2066 

390 


France's  case,  Estate  on  Condition 
Freeman  v.  Barnes,  Estate  for  Years 

V.  Booth,  Tenures 

•  V.  Boyle,  Estate  for  Years 

V.  Phillips,  Copyholds       793. 

V.  West,  Fee  Simple  951 

,  Estate  for  Years        1362 

1230 

45 

11.95 

768.  821 

1983 

1016 

2314 

960 

1417 

905 

1399 

484 

2157 

634 

2095 

881 


Freemoult  v.  Dedire,  Jointure 
French  v.  Chichester,  Assets 

V.  Davis,  Dower 

French's  case.  Copyholds 
Freshfield  v.  Reed,   Powers 
Fresliwater  v.  Rois,  Estate  Tail 
Frewin  v.  Rolfe,  Joint-Tenancy 
Frogmorton  v.  Holyday,  Fee  Simple 
Frontin  v.  Small,  Estate  for  Years 
Frosel  v.  Welch,  Copyhofds 

,    Estate  for  Years 

Fry  V.  Flood,  Right  to  Pews 

•  V.  Porter,  Estates  on  Condition 


Frye  v.  Burgh,  Franchises 
Fryer  v.  Coombs,  Powers 

V.  Crisp,  Copyholds 

V.  Johnson,  Easements, 

Fulgeam's  case.  Rent 

Fuliiam  V.  Jones,  Land  and  Money 

Fuller  V.  Lane,  Churches 

,  Right  to  Pews 

Fuller''s  case.  Houses 
Fulwood  V.  Ward,  Rent 


499 

183 

65 

90 

484 

89 

209 

7 

697 


Fulwood's  ease.  Chattels  Real 

case,  Franchises 

case.  Statute  Merchant,  &c,  2292 

Furicy  v.  Canterbury,  (Mayor,)  Ten- 

ancy  from  Year  to  Year  1578 

Futter  V.  Borome  (not  Bozoun,)  Tithes     1 35 
Fyler  v.  Fyler,  Trusts  1921 

Gabriel  v.  Clerk,  Offices  560 

Gage  V,  Acton,  Rent  196 

,  Copyholds  868 

Gage  V.  Acton,  Merger,  245J 

—  V.  Smith,  Waste  246S 


Fox  V.  Oakley,  Estate  at  Sufferance       1599 

—  V.  Rutty,  Tithes  1 36 

—  V,  Swan,  Estate  for  Years  1508 
Fox's  case,  Uses  163 
Foxall  V.  Venables,  Common  281 
Foxley's  case,  Franchises  672 
Foxley  v,  Annesley,  Curtesy  1094 


Gainsborough  v.  Gainsborough, Trusts  1792 
Gale  V.  Gale,  Joint-Tenancy 

V.  Noble,  Customary  Freeholds 


Gaily  V.  Selby,  Advowsons 
Galton  V.  Hancock,  Assets 

,  Dower 

Mortgage 


Game  v.  Synijns,  Assets 
Gardiner  v.  Fell,  Assets 

— • —  V.  Griffith,  Ads'owsons, 

■ ,  Estate  for  Years 


• V.  Norman,  Copyholds 

Gardner  v.  Roper,  Trusts 


231 

921 

13i 

45 

H95 

2202c 

35 

37 

120 

1460 

797 

1764 


XXXVl 


TABLE    OF    CASES. 


Gardner  v.  Rowe,  Trusts 
Garfoot  v.  Gfirfoot,  Triistg 
Garforth  v.  Fearn,  Offices 
Gargrave  v.  Gargrave,  Common 
Garland  v.  Jek}'ll,  Copyholdg 
Garmstone  v.  Gaunt,  Trusts 
Garnish  v.  Wentworth,  Uses 
Garrard  v.  Lauderdale  (Ld.,)  Trusts 
Garrit  v.  Sliarp,  Right  to  Light,  &c. 
Garth  v.  Baldwin,  Chattels  Real 

,  Estate  for  Years 

,  Trusts  1707 

(larthshore  v.  Chalie,  Jointure 
Gasgoine  v.  Barker,  Land  and  Money 

V.  Tliwing,  Trusts 

Gaskill  V.  Ilarman,  Trusts 

V.  Hough,  Assets' 

Gate  V.  Wiseman,  Dower 
Gatewood's  case,  Common 

. ,  Copyholdg 

,  Prescription 

Gee  V.  Frceland,  Offices 

Geere  V.  Burkcnsham,  Franchises 

(iell  V.  Vcrmuden,  Heir 

Gcnner  v.  Sparke,  Houses 

(iennings  v.  Lake,  Estate  for  Years 

George  v.  Palton,  Advowsons 

V.  Lawlcy,  Franchises 

. V.  Millbanke,  Assets 

,    Powers 

Gerard  or  Gerrard  v.  Boden,  Annuity 

V.  Gerard,  Dower 

,  Powers 

I • •  V.  Worsley,  Uses 

■Gerrard  v.  Cooke,  Right  of  Way 
■Gervoyse's  case.  Jointure 
■Gibbons  v.  Baddall,  Mortgage 
V.  Pott,  Copyholds 
•.  Girard,  Dignities 
.  Rumsey,  Trusts 
.  Moulton,  Powers 
V.  Clarke,  Tithes 

V.  Joyer,  Trusts 

Gibson  v.  Mountfort  (Ld.,)  Fee  Simple 

■ ,  Trusts 

V.  Roger,  Uses 

Searl,  Estate  for  Years 


1934  Glover  \.  Cope,  Customary  Freeholds 


Lane,  Common 

,  Franchises 

Monckton,  Fee  Simple 
,   Trusts 


1761a 
574 
347 

785 
1886  Glyn  v.  Scawen,  Commons 
1634  'Glynn  v.  Harding,  Trusts 
1779|Godbolt's  case.  Offices 
456  I  Goddale's  case.  Estate,  at  Will 
7  Goddard  v.  Complin,  Jointure 
Mortgage 


1479 
1714 
1243 


Goddard's  case.  Rent 
■  Godfrey  and  Dixon's  case,  Usea 
72  :  Go<lfrey  v.  Littell,  Commons 
1782 'Godfrey  v.  Watson,  Mortgage 
1759  I  Godfrey's  case.  Franchises 

49  Godley  v.  Firth,  Riglit  of  Way 
1146  Godolphin  v,  Godolphin,  Powers 

2751 V.  Tudor,  Offices 

769 
2419 


■Gie  V.  Rider,  Estate  for  Years 
GifFord  v.  Manley,  Trusts 
Gilford's  case,  Trusts 
«iiles's  case,  Advowsons 
Gill  V.  Pearson,  Fee  Simple 
(Jilman  v.  Elton,  Rent 
Gilmorc  v.  Harris,  Estate  tail 
Gilpin  V.  Cookson,  Dower 
(Jingcr  V.  White,  Estate  Tail 
■Girardy  v.  Richardson,  Rent 
'Girling  v.  Lee,  Mortgage 

__ ,  Jointure 

•Gittings  V.  Steele,  Assets  _ 
■(iittins  V.  Cowper,  Franchises 
•(Gladstone  v.  Ripley,  Jointure 
'Glaister  v.  Hewer,  Trusts 
(Glasscock  v.  Peek  or  Peche,  Common"' 

Copyholds 


■(ilebe  V.  Glebe,  Assets 
'Glenorchy  (Ld.)  v.  Bosville 


1714 


540 
661 
81 
88 
1299 
128 
655 
38 
2055 
263.^ 
1131 
2085 
1636 
369 
1234 
2207 
870 
612 
1789 
1960 
1.34 
1944 
9.54 
1831 
1659 
1949 
1496 
1949 
1720 
122 
965 
239 
977 
1135 
988 
258 
2264 
1230 
49 
638 
1225 
1786 
296 
849 
49 
1808 


I  Goldney,  Ex  parte,  Estate  for  Years 
Goldsmid  v.  Goldsmid,  Jointure 


921 
320 
631 

967 

1831 

95 

1775 

587 
1563 
1259 
2256 

209 

1609 

95 

2233 

652 

362 
1959& 

987 
1455 


1231 
Good  all's  case.  Estates  on  Condition  2164 
Goodall  V.  River,  Powers  2189 
Goodcheap's  case,  Powers  1978 
Goodair  v.  Clarke,  Remainders  2328 
Goodman  v.  Gore,  Right  to  Light,  &c.  448 
V.  Grierson,  Mortgage           2202a 


Goodrich  v.  Brown,  Trusts 
Goodridge  v.  Goodridge,  Estate  Tail 
Goodright  v,  Barron,  Fee  Simple 
y.  Cat  or,  Rent 

■■ ,  Powers 


V.  Cordwent,  Tenancy  from 
Year  to  Year 

V.  Cornish,  Remainders 

V.  Davis,  Estates  on  Condi- 
tion 

V.  Dunham,  Estate  Tail 

,  Remainders 

V.  Hodges,  Trusts 

V.  Richardson,  Estate  for 
Years  1308. 


1720 
979 
961 
251 

2018 

1.594 
2337 

2197 

982 

2334 

1783 


V.  Sale,  Trusts 

V.  Saul,  Descent 

V.  Searle,  Merger 

V.  Shuffill,  Ancient  Demesne 

V.  Stocker,  Fee  Simple 


1519 
1741 
2392 
2452 
937 
959 


Straphan,  Estate  for  Years  1381 

V.  Wells,  Trusts  1957 

Goodson  V.  Ellison,  Trusts  1719 

Goodtitle  V.  Alker,  Ways  102 

V.  Bailey,  Mortgage  2216 

V.  Bcllington,  Uses  1692 

V.  Funucan,  Estate  for  Years  1361 
V.  Herbert,  Estate  for  Years  1275 

,  Estate  at  Will     1547 

987 
1864 


V.  Herring,  Estate  Tail 

V.  Jones,  Trusts 

Goodtitle   v.    Longford,    Estate    for 

Years  1277 

V.  Meredith,  Powers  1984 

V.  Morgan,  Mortgage  2250 

V.  Newman,  Title  2377 

V.  Otway,  Powers  2060 

V.  Pcttoe,  Uses  1632 

V.  Stokes,  Uses  1 666 

V.  Whitby,  Trusts  1833 


TABLE     OF     CASES. 


XXXVU 


Goodtille  v.  Whitby,  Remainders 

V.  White,  Merger 

V.  Woodward,       Tenancy 

from  Year  to  Year 
Goodwin  or  Goodwyn  v.  Goodwyn, 

Powers 

V.  Lon;xl'i^''st, 

Copyholds 

■ ,  Estate  for  Years 

V.    Winsmere, 

Dowers 
Gordon  v.  Harper,  Copyholds 

V.  Levi 

Gore  V.  Lloyd,  Estate  for  Years 

V.  Perdue,  Dower 

Goring  v.  Bickerstaft^  Trusts        1710. 

V.  Nash,  Trusts 

V.  Warner,  Estate  for  Years 

1455,  1510 


§  2335 1  Green  or  Greene  v.  Rutherford,  Fran- 
245-2  chises  §  723. 726 

.Trusts  1»24 

1588 V.  Stephens,  Tail  991 

! ■ .Trusts  1817 

2011  jGreenaway   v.  Adams,   Estates    for 

I     Years  1507 

905  .Greenliaw  v.  Isle}',  Common  321 

1399  Greeniiill  v.  Grecidiill,  Trusts  1720 
|Groenslade    v.    Halliday,    Right    to 

Water  431 

Grcenwell  v.  Greenwell,  Trusts  1883 
Greenwood   v.   Lincoln    (Bp.),    Next 

Avoidance  127 
V.  Taylor,  Assets  54 


1130 

852 
2008 
1288 
1141 
1738 
1813 


Gorton  v.  Falkner,  Rent 
Gosling  V.  Warburton,  Dower 
Gough  V.  Howard,  Rent 
Gould  V.  Bradstoel;,  Rent 

V.  Fleetwood,  Trasts 

Gower  v.  Grovcnor,  Trusts 

V.  Mead,  Assets 

Grace,  Ex  parte.  Estate  for  Years 

V.  Grace,  Ancient  Demesne 

Gralloii  (D.)  v.  Hanmer,  Life  Estate 
Graham  v.  Londonderry  (Ld.),  Trusts 

• 

V.  Si  me,  Copyholds 

Grant  v.  Astle,  Copyholds 

V.  Ellis,  Title 

V.  Lynam,  Powers 

V.  .Mills,  Trusts  1798, 

Grantham    v.    Hawley,    Estate    for 

Years 
V.  Gunner,  Commons 


238 

1181 

209 


V.  Tyler,  Estate  for  Years  1.35G 


V.  Wakeford,  Trusts 


Gregory  v.  Gregory,  Trusts 

V.  Harrison,  Copj-holds 

V.  Henderson,  Fee  Simple 

V.  Henderson,  Trusts    1703, 

Grendcn  v.  Lincoln  (By.),  Advowsons 
245,Grenville  (Ld.)  v.  Blyth,  Trusts 
1926|Gresham's   (Lady)  case,  Estate   for 
1808;  Years 

45 ,  Powers 


1852 

1955 
905 
963 

1829 
128 

1822 


1446  Grcswold's  case.  Uses 

938 '  Grctton  v.  Haward,  Jointure 
1056  Grey  v.  Grey,  Trusts 

V.  Mannock,  Life  Estate 


1882 
805 


1380 
1980 
1671 
1204 

1777t.  1826 
185G 


Northumberland 
Copyhold 


(Duke), 


Graunt's  case.  Mines 
Gravenor  v.  Hallum,  Trusts 
V.  Rake    or   Brooke,  Cus- 
tomary Estates  2355 

V.  Ted,  Descent  2410 

Graves  v.  Hicks,  Assets  47 

Graj'  V.  Bond,  Waters  108 

—.Right  of  Way  380 

Gray  v.  Gray,  Trusts  1787 

■  V.  Minnethorpe,  Assets  49 

Grayson  V.  Atkinson,  Fee  Simple  961 

Greasley  v.  Codlin,  Right  of  Way  396 

Greatorex  v.  Carey,  Dower  1195 

Grea'-es  v.  Maddison,  Power  2085 

V.  Powell,  Assets  42 

Green's  case,  Advowsons  121 
Green,  In  re.  Mortgage                           2215(; 

Green  or  Greene  v.  Austen,  Tithes  135 

V.  Edwards,  Estate 

for  Years  1478 

V.  Ekins,  Trusts  1811 

V.  Harris,  Copyiiolds  833 

V.  Harvey,  Dower  1 190 

V.  Jackson,  Trusts  1794 

V.  Marygold,  Dower  1211 

V.  Proude,  Powers  1984 

V.  Robinson,  Wills  93 


778 [Grey's  case.  Heir-looms 

2386' Dignities 

2041   Grcsiey's  case.  Franchises 
,  1822  Grieveson    v.    Kirsopp,    Land 

Money 
1473  Griffin  v.  Blandford,  Copyholds 

320  } V.  Gritlin,  Estate  lor  Years 

101  j V.  Scott,  Rent 

1787a  ;  Griffiths  v.  Buckle,  Trusts 

■  V.  Griffiths,  Rent 

V,  Harrison,  Powers 

V.  Vere,  Trusts 


and 


Grigby  v.  Cox,  Trusts 
Grimman  v.  Lcgge,  Rent 

,  Estate  for  Years 

Grimstead  v.  Marlowe,  Common      27 
,  Prescription 


Grimstone  v.  Bruce  (Ld.),  Heir 
Grindley  v.  Barker,  Powers 
Grisell  v.  Leigh,  Commons 
Grocer's     Company    v.    Canterbury 

(Archbp.),  Advowsons 
Grove  v.  Hooke,  Jointure 
v.  West,  Trusts 


Groves  v.  Groves,  Trusts 

Grumbell     v.     Roper,     Estates     for 

Years 
Grymcs  v.  Bov^•eren,  Fixtures 

V.  Peacock,  Riglit  of  Way 


Grvmcs's  case.  Common 
Guffley  V.  Pindar,  Commons 
Guidot  V.  Guidot,  Land  and  Money 
Guinand  v.  Naish,  Appointments 
Gullett  V.  Lopes,  Commons 


291 


854 

29 

614 

647 

71 

816 
1.534 

249 
1809 

225 
2018 
1716 
1890 

205 

1497 

7.  295 

2419 

82 

1975 

318 

122 
12.30 

102 
1784 

1331 
23 

384 

344 

26 

64 

2049 

342 


XXXVIU 


TABLE    OF     CASES. 


Gulleford  or  Culleford  v.  Cardonell  or 

De  Cardonell,  Offices 
Gulliver  v.  Burr,  Tenancy  from  Year 

to  Year 
Guntry  v,  Falkingliam,  Wills 
Gundry  v.  Fcltham,  Trespass 
Guthrie  v.  Armstrong-,  Powers 
Guy  V.  Dormer,  Powers 
Gwilliams  v.  Rowell,  Powers 
Gwillim  V.  Baker,  Rent 
Gwydin  v.  Foakes,  Commons 
Gwynne  v.  Edwards,  Assets 
V.    Mayneston,    Estate    for 


Years 

Gybon  v.  Bowyer,  Ancient  Demesne 
Gybson  v.  Searl,  Offices 

,  Estate  for  Years 

Gyles  V.  Colshil,  Advowsons 

Habcrgham  v.  Vincent,  Trusts 

,  Powers 

Haight  V.  Langham,  Assets 
Haldenby  v.  Spoffi^rth,  Trusts 
Hale  V.  Wegg,  Copyholds 
Hales  V.  Margerum,  Powers 
Haley  v.  Bannister,  Trusts 
Hall  V.  Burgess,  Rent 

. V.  Dewcs,  Powers 

V.  Digby,  Joint-tenancy 

V.  Ellis,  Churches 

,  Right  to  Pews 

— — ,  Ex  parte.  Dower 

V.  Hallet,  Trusts 

V.  Harding,  Commons 

. V.  Hardy,  Dower 

V.  Macket,  Mills 

. ,  Tithes 


V.  Kendall,  Assets 
•  V.  Seabriglit,  Estate  for  Years 


§  587 

1575 
93 

2459 

1974 

2075 

1975« 

240 

332 

54 

1304 
935 
560 

1494 
124 

1792 

1984 

45 

1870 

870 
2010 
1716 

205 

1977 

2315 

90 

481 
1121 
1945 

326 

1186 

93 

139 

42 

1281 

423 

651 


Hanson,  Ex  parte  Trusts 

V.  Gardiner,  Copyholds 

V.  Keating,  Mortgage 

Harber  v.  Rand,  Right  of  Way 
Harbert's  case.  Assets 


H822 

917 

2281 

389 

32 


-,  Statute   Merchant, 
&c. 


V.  Swift,  Right  to  Water 

V.  Turbctt,  Franchises 

Hallack  v.  Cambridge  (Univ.),  Right 

to  Pews  484 
Halliday  v.  Hudson,  Trusts         1787a.  1792 

Hallivvell  v.  Tanner,  Assets  46 

Halsey  v.  Hales,  Powers  2057 
Hamblcdon's  case,  Joint-tenancy           2308'7 

Harnerton  v.  Eastoffe,  Conmions  320 

v.  Stead,  Estate  for  Years  1293 

Hamilton  v.  Boyse,  Powers  2047 

V.  Denny,  Estate  for  Y''ears  1540 

V.  Fry,  Trusts  1827 

V.  Mohun    (Ld.,)   Dower 

1130.  1208 

V.  Worley,  Assets  48 

Hamlen  v.  Hamlen,  Copyholds  888 

Hamond  v.  Jctliro,  Estate  for  Years  1456 

Hampstcad  Manor  case.  Franchises  677 

Hampton  V.  Spencer,  Trusts  1765 

Hanby  v.  Roberts,  Assets  54 

Hancock  v.  Caflyn,  Estate  for  Years  1284 

Hancox  v.  Abber,  Assets  49 

Hankes  v.  Jones,  Jointure  1244 

Hanmcr  v.  Eyton,  Estate  for  Years  1480 
Hannam  v.  Woodford,  Estate   for 

Years  1402 

Hanson  v.  Derby,  Mortgage  2233 


2289 

Harbin  v.  Barton,  Estate  for  Years  1405 

Harbyn  v.  Greene,  Copyholds  770 

Harcourt  v.  Fox,  Offices  539 

Harden  v.  Parsons,  Trusts  1878 
Harding  v.  Brooks,  Common             320.  343 

V.  Crethorne,  Rent  257 

v.  Glynn,  Trusts  1804 

,  Powers  1959 

V.  Hardres,  Trusts  1798 

v.  Wilson,  Right  of  Way  366 

,    Estate  for  Years  1299 

Hardman  v.  Johnson,  Trusts  1802 

Hardy  v.  Halliday,  Common  277 

v.  Saycr,  Estates  on  Condition  2142 

Hare  v.  Buckley,  Advowsons  120 

v.  Coley,  Copyholds  875 

and  Leisure,  Offices  561 

Harebottle  v.  Placock,  Mines  101 

Harecourt  v.  Pole,  Powers  2094 

V.  Wrcnham,  Assets  43 

Hai'.and  v.  Twigg,  Trusts  1772.  1775 
Harman  v.  Tappenden,  Franchises  713 
Harper  v.  Charlesworth,  Right  of  Way  389 
Harrington.  V.  Du  Chatel,  Offices  588 
V.  Garraway,  Estate    for 

Years  1402 

V.  Kloprogge,  Offices  588 

V.  Smith,  jointure  1262 

V.  Wise,  Rent  157 

,  Estate  for  Years  1282 

Harris  v.  Drew,  Churches  90 

,  Right  to  Pews  485 

V.  Carnon,  Right  of  Way  397 

V.  Hayes,  Manors  88 

V.  Herwell,  Trusts  1768 

V.  Jay  or  Jayes,  Copyholds  506 

V.  Nicholls,  Advowsons  122 

.Curtesy  1075 

,  Coparcenary  2301 

V.  Ryding,  Easements  506 

V.  Shipway,  Rent  196 

Harrison  v.  Barnby,  Rent  228 

V.  Belsey,  Merger  2452 

V.  Forth,  Estate  for  Years  1299 

,  Trusts   ,  1799 

V.  Harrison,  Dower  1 1 99 

V.  Nay  lor.  Trusts  1815 

V.  Parker,  Easements  514 

V.  Southcote,  Mortgage  2207rt 

Harrison's  case.  Franchises  629 
Harrow  School  (Keepers,  &c.)  v.  Al- 

derton,  Waste  2465 

Hart  V.  Middlehurst,  Trusts  1810 

Hartga  v.  England„(Bank)  Trusts  1824 

Hartley  v.  Hurlc,  Assets  49 

. v.  West,  Jointure  1265 

Harlop  V.  Hartop,  Uses  1659 

,  Trusts  1707 

V.  Hoare,  Franchises  682 

1  Hartwell  v.  Clutters,  Assets  43 


TABLE    OF    CASES. 


XXXlX 


Hartwell  v.  Hartwcll,  Offices 
Harvey  or  Harvie  v.  Ashley,  Jointure 

V.  Aston,  Estates  on  Condition 

V.  Blackcole,  Franchises 

V.  Harvey,  Fixtures 


Dower 
Trusts 


V.  Newlyn,  Offices 

V.  Rogers,  Right  of  Way 


§  588|Heatly  v.  Tliomas,  Powers  §  2000 

l:2l5lHebblethwaite  v.  Palrner  or  Palmers, 
2154  Right  to  Water  438 

670 ,  Powers  2085 

19  Hedd  v.  Chalenor,  Copyholds  883 

1.20-41 V.  Wiieelhouse,  Franchises       f.82,  721 

1748;  Hedges  v.  Everard,  Jointure  1230.  1238 

550 !  Hegran  v.  Johnson,  Rent 


Harvey's  case.  Easements 
Harwell  v.  Lucas,  Uses 
Harwood  v.  Goodright,  Heir 
Hasforth  v.  Wells,  Ways 
Haspert  v.  Wills,  Waters 
Hassall  v.  Smitliers,  Trusts 
Hassard  v.  Cantrel,  Common 
Hassell  V.  Gonthwaite,  Life  Estate 
Hastings  v.  Douglas,  Fraucliises 

,  Estate  for  Years 

Hatch  V.  Cannon,  Ancient  Demesne 

V.  Leworthy,  Powers 

Hatcher  v.  Curtis,  Powers 
Hatfield  v.  Rawling,  Common 
Haths  V.  Ash,  Estate  for  Years 
Haunchet's  case,  Co|)yholds 

Havell  V.  Ventrice,  Dower 

Havergill  v.  Hare,  Rent 

Hawes  v.  Warner,  Assets 

Hawker  v.  Hawker,  Uses 

,  Trusts 

Hawkes  v.  Molineux,  Common 

Hawkins  v.  Coleman.  Churches' 

V.  Compiegnc,  Right  to  Pews 

V.  Kell}%  Rent 

v.  Kemp,  Powers 

v.  Laws,  Assets 

v.  Shawc,  Descent 

V.  Taylor,  Mortgage 


394 ,  Estate  for  Years 

499 ,  Estate  at  Will 

1682  Heigate  v.  WiHiams,  Right  of  Way 
82  !  Hele  v.  Bond,  Powers 
102 !  Hcher  v.  Casebert,  Rent 

109  I ,  Estate  for  Years 

1947|Henehett  v.  Kimpson,  Rent 
318  ^Henderson  v.  Hay,  Estate  for  Years 
1052  "Henley  v.  Welch,  Franchises 

708  ;  Hcnn's  ease.  Ways 
1433  Henningham's  case,  Assets 
937  Hennings   v.   Brabason,  Estate  for 
19961     Years 
2066 '  Herbert,  Ex  parte.  Trusts 

311  j V.  Herbert,  Dower 

1436' V.  Thomas,  Houses 

783  Herbert's  case.  Heir 
1176  Herelbrd  V.  Ballard,  Estate  for  Years 

178  j V.  Ravenhill,    Land   and 

45 1  Money 

1659  jHerlakenden's  case.  Fixtures 

1832  : ,  Trees 

276; ,  Estate  for  Years 

90  Herring  v.  Brown,  Powers 
495  'Herson's  case,  Franchises 
220  Hervey  v.  Hervey,  Jointure 


Haworth  v.  Herbert,  Dower 
Hawtrie  v.  Auger,  Assets 
Hay  V.Coventry  (E.,)  Life  Estate 
Hayes  v.  Kingdom,  Trusts 
Haymer  v.  Haymer,  Jointure 
Haymer  (not  Hayner ;  and  2  Vent.  3, 
not  1  Vent.  34.3)  1230, 

Hayter  v.  Rod,  Trusts 
Hayward  v.  Cuiinington,  Common 

v.  Hasswell,    Estate    for 

Years 

V.  Stillingfieet,  Estate  Tail 

Hazlewood  v.  Pope,  Assets 
Hazlcwood's  case.  Franchises 
Head  v.  Head,  Descent 
Headlam  v.  Hedle}',  Ways 

,  Right  of  Way 

Headley  v.  Readhead,  Assets 
Hcardson  v.  Dendy,  Dower 

V.  Williamson,  Trusts 

Hearle  v.  Greenbank,  Advowsons 
Hearle  v.  Greenbank,  Curtesy 
-,  Power 


1980 

43 

2405 

2257 

1189 

32 

1032 

17776 

1246 

1249 

1745 

303 


Powers 


1290 

10071 

49! 

665  j 

23;)2 ' 

102 

3J2 

54 

1231 

1833 

1107 

1107 

1959 


Hetherington  v.  Graham,  Dower 
Hcwit  v.  Dacre,  (Ld.)  Powers 

V.  P^orstcr,  Trusts 

■  V.  Hewitt,  Trusts 

,  Powers 

Hewitt  V.  Ireland,  Estate  Tail 

V.  Norberon,  Franchises 

V.  Wright,  Land  and  Money 

V.  Wright,  Trusts 

Hcwlins  V.  Shippam,  Right  of  Way 

[ V.  Shippam,  Easements 

j  Heydon's  case,  Estate  for  Years 
iHevdon  and  Smith's  case.  Copyholds 


Hearn  v.  Allen,  Lands'  ^7 

Heath  v.  Elliott,  Common  290 

v.  Heath,  Powers  2068a 

v.  Hubbard,  (4  East,  110,  omit- 
ted,) Tenancy  in  Common    231S/; 
Heatherly  v.  Weston,  Estate  for  Years  1407 


Hickenbotham   v.  Grove,  Estate  for 
Years 

Hickman  v.  Thorne,  Common  27 

Hickson  v.  Witham,  Trusts 

Hide's  case,  or   Hide  and  Newport, 
Copyholds 

Hide  v.  Welsh,  Copyholds 

Higginson  v.  Barnaby,  Trusts 

Higham  and  Cooke's  case.  Estate  for 
Years 

Higliway  v.  Banner,  Trusts 

i  Hill   V.  Ad#ms,  Dower 

! V.  Barclays  Estate  for  Years 

V.  Bolton,  Customary  Freeholds 

V.  Bristol,  Jointure 

V.  Cock,  Land  and  Money 

V.  Cock,  Estates  on  Condition 

V.  Grange,  Land 

V.  Grange,  Rent 


169 
1289 
1547 

382 
2035 

207 
1458 

200- 
1509 

665 

102 
32 

1270 
1622 
1122 

89 

82 
1335 

75 
19 
25 

14G3 
2023 

650 
1239 

992 
1190 
2048 
1919 
1827 
1983 

976 

634 

69.75 

1794 

362 

513 
1335 

849 

1455 

rO.  290 

1722 

865 

838 

1819 

1303 

1811 

1174 

1293 

923 

1257 

72 

2190 

87 

191 


xl 


TABLE    OF    CASES. 


Hill  V.  Hill,  Trusts  §1819 

V.  London,  (Bp.)  Trusts  1790 

Hillary  v.  Waller,  Trusts  1836 

Hilliard  v.  Jefferson,  CJiurches  91 

Hills  V.  Downton,  Copyholds  918 

Hilton  V.  Scarborough,  (Ld.)  Right  to 

Water  437 

HinchclifFe  v.  Kinnoul,  Right  of  Way     366 
Hinchman  v.  Isles,  Estate  at  Will  1551 

Hinck  V.  Harris,  Curtesy  1078 

Hinckes  v.  Gierke,  Common  282 

Hinsley  v.  Wilkinson,  Common  354 

Hinton  v,  Hinton,  Estate  Tail  1007 

V.  Hinton,  Dower  1173 

V.  Hinton,  Trusts  1 822 

V.  Hinton,  Joint-tenancy  2314 

Hitch  V.  Wallis,  Copyholds  793 

Hitchins  or  Hitchin  v.  Hitchins,  Dower 

1158. 1163 


Hitchman  v.  Walton,  Fixtures 
Hix  or  Higges  v.  Gardiner,  Mills 
Hixon  V.  Wytham,  Assets 

V.  Wytham,  Powers 

Hobart  v.  Suffolk,  (Countess)  Trusts 
Hobson  V.  Blackburn,  Assets 

. V.  Blackburn,  Tithes 

V.  Trevor,  Powers 


24 
93 

42 

1984 

1787« 

58 

134 

1948 

1152 

15] 

1290 

278 

377 


Hollis  V.  Goldfinch,  Right  to  Water 
V.  Whiteing,  Estate  for  Years 


§416 

1291 

Holloway  v.  Berkeley,  Copyholds     785.  812 

V.  Pollard,  Uses  1685 

V.  Smith,  Franchises  682 

Holme  V.  Seller,  Right  of  Way  366 

Holmes  v.  Blogg,  Estate  for  Years         1446 

V.  Coghill,  Assets  39 

V.  Dring,  Trusts  1878 


V.  Goring,  Right  of  Way,    374.384 

V.  Goring,  Powers  2055 

Holroyd  v.  Breare,  Franchises  631 
Holt  V.  Burleigh,  Powers  1965. 2059o 
V.  Holt,  Jointure                              1240 


V.  Winchester,  (Bp.)  Next  Pre- 
sentation 9 
Holzapfel  v.  Baker,  Rent  203 
Homes  and  Bingley,  Copyholds  905 

1101 


Honor  v.  Honor,  Trusts 
Hooker  v.  Hooker,  Curtesy 


Hookham  v.  Hales,  Powers 

Hool  V.  Bell,  Rent 

Hopkins  or  Hoskins.     Sec  Hoskins. 

Hopkins  v.  Hoskins,  Uses 

Horn  V.  Baker,  Fixtures 

V.  Taylor,  Right  of  Way 


Hoby  V.  Hoby,  Dower 

V.  Roebuck,  Rent 

V.  Roebuck,  Estate  for  Years 

Hockley  v.  Lamb,  Common 
Hodder  v.  Holman,  Right  of  Way 
Hodges  V.  Smith,  Estates  on  Condition  2149 
Hodsfcskins  v.  Tucker,  Estate  for  Years 

^  1341 

Hoddesdon  v.  Grcsil,  Common  318 
Hodgkins  or  Hodgson  v.  Robson  or 

Thornborough,  Rent  211 
Hodgkinson  v.  Wood,  Estate  Tail  977 
Hodgson  V.  Hodgson  v.  Ambrose,  Es- 
tate Tail  991 

,  Trusts  1770 

_ V.  Anderson,  Rent,  196 

V.  Gascoigne,  Rent,  199 

_ •    V.  Rawson,  Land 

and  Money,  80 

Hody  V.  Lunn,  Dower  1186 

Hoe  V.  Taylor,  Tithes  1.34 

-  and  Taylor,  Copyholds  834 
Holbach  v.  Warner,  Ifight  to  Water  441 
Holcroll  V.  Heel,  Franchises  691 
Holden  v.  Smallbrook,  Life  Estate  1052 
Holdenby  v.  Spofibrth,  Powers  2119 
Holder  v.  Coates,  Woods  and  Trees  96 

. ■      V.  Preston,  Copyholds  780 

Holdernesse   (Lady)   v.  Carmarthen, 

(Marq.)  Annuity  263 

Holdfast  V.  Marten,  Fee  Simple  958 

Holding  V.  Piggott,  Estate  for  Years  1474 

Holdy  V.  Hodges,  Ancient  Dcm^csne  924 

Holford  V.  Hatcli,  Estate  lor  Years  1386 

V.  Phipps,  Trusts  1858 

Holiday  v.  Bowman,  Assets  49 

Holland  v.  Baines,  Franchises  709 

V.  Palmer,  Rent  193 


Hornby  v.  Houlditch,  Rent 
Home  V.  Barton,  Powers 

V.  Barton,  Trusts 

V.  Wildlake,  Riglit  of  Way 


2010 
253 

1661 

21 

375 

205 

1966a 

1819 

275 

1121 

318 


Hollingshcad  v 
V, 


Hollinsrshead,  Powers  1973 
AValton,  Common  2  /  3 


Horner  v.  Liddiard,  Dower 
Horsey  v.  Hagberton,  Common 
Hortou  V.  Horton,  Estates  on  Condition 

2183 
Horwood  V.  West,  Trusts  1 771.  1774 

Hoskins  or  Hopkins  v.  Helmore,  Rent     193 

V.  Knight,  Rent       198 

. V.  Pace,  Ancient 

Demesne  924 

— — — ' V.Robins  or  Rob- 
inson, Common     280.  296.  331 

. ,  Easements  515 

,  Copyholds    858 

Hoskin's  case.  Ways  102 

Hoste  V.  Pratt,  Trusts  1889 

Holliam  V.  E.  I.  Company,  Estates  on 

Condition  215- 

Hotlev  V.  Scott,  Rent  177 

Houghton,  Ex  parte.  Trusts  1784 

Hovenden  v.  Anncsley,  (Ld.)  Trusts      172.9 
Hovey  v.  Blakcman,  Trusts  1750 

How  or  Howe  v.  Bromsgrove,  Copy- 
holds 917 

V.   Dartmouth,   (E.) 

Trusts  1878 

V.  Nicholl,  Trusts  1748 

V.  Strode,  Common  320 

V.  Whitfield,  Rent  177 

V.  Whitfield,  Powers       1981 

Howard's  case,  Offices  590 

Howard  v.  Bartlett,  Copyholds  900 

V.  Bartlett,  Customary  Estates  2366 

V.  Cavendish,  Advowsons  131 

V.  Cavendish,  DoAver  1152 

V.  Harris,  Mortgage  2262 

V.  Shaw,  Rent  258 

V.  Spencer,  Common  323 


TABLE     OF     CASES. 


Xli 


Howard  v.  Wcinslay,  Tenancy  from 

Year  to  Year  §  1577 

V.Wood,  Offices  5J1.597 

Howe  V.  Dartmouth,  (E.)  Trusts  lSb5 

Howel  or  Howell  v.  Barnes,  Powers 

1975r/,  1959r/ 

V.  Howel,  Trusts         1811 

V.  Johns,  Francliises     G88 

V.  King,  Right  of  Way 

376 

V.  Price,  Assets  46 

Howse  V.  Chapman,  Trusts  1794 

V.  Webster,  Estate  for  Years      1458 

Howton  V.  Frearson,  Right  of  Way  373 

Hoy  V.  Master,  Trusts  1773 

Hubbard's  case.  Powers  2075 

Hubbard  or  Hobart  v.  Hammond, 

Copyholds  789. 793 

Hucks  V.  Hucks,  Powers  2668a 

Hudlestone  v.  Corbett,  Customary 

Freeholds  ^  921 

Huggins  V.  Bambridge,  Offices  587 

Hughs  V.  Clubb,  Jointure  1264 

Ex  parte.  Estate  for  Years  1453 

V.  Harrys,  Customary  Free- 
holds 923 

V.  Hughs,  Distress  225 

Hughs  V.  Robotham,  Estate  for  Years  1489 
Hulme  V.  Hulme,  Trusts  1914 

. V.  Pardoe,  Tithes  134 

Humberston  v.  Humberston,  Powers      2052 
Humberstone  v.  Chase,  Trusts  1824 

Hungerford  v.  Havyland,  Copyliolds         802 

V.  Hungerford,  Mortgage     2223 

Hunt  V.  Burn,  Ancient  Demesne  924 

V.  Cope,  Rent  211 

V.  Gilburne,  Tenures  758 

Huntingdon  (E.)  v.  Mildmay,  Uses        1662 

V.  Mountjoye,  Mines       99 

Huntington  v.  Huntington,  Estate  for 

Years  1440 

Huntley's  case,  Rent  210 

Hurst's  case.  Offices  531 

Hurry  v.  Rickman,  Rent  246 

Hussey  v.  Grills,  Customary  Freeholds    922 
Hutcheson  v.  Hammond,  Trusts  17870,  1789 


Ingram's  case.  Offices 
Inman  v.  Stamp,  Estate  for  Years 
Ireson  v.  Pearman,  Trusts 
Irish  Soc.  v.  Needham,  Rent 
Irnham  v.  Child,  Mortgage 
Irwin  V.  Favicr,  Powers 
Ised's  case.  Copyholds 
Isherwood  v.  Oldknow,  Estate   for 
Years 
-,  Powers 


Israel  v.  Simmons,  Rent 
Ithell  V.  Beane,  Trusts 

MortjxaCTC 


Ive  V.  Ashe,  Offices 
Ives  V.  Leggc,  Estate  Tail 
Ives  and  Sime's  case.  Lands 
Ivy  V.  Gilbert,  Trusts 
Izon  V.  Gorton,  Rent 

Jackman  v.  Hoddesdon,  Copyholds 

. ,  Estate    for 

Years 
Jackson  v.  Innes,  Dower 

,   Estate  for  Years 

V.  Jackson,  Uses 

,  Powers 

,  Joint-tenancy 

,  Jointure 


V.  Mordant,  Estate  for  Years 

V.  Neal,  Estate  for  Years 

V.  Parker,  Dower 

V.  Pesked,  Right  to  Water 

V.  Ramsbotham,  Fee  Simple 

V.  Stacey,  Right  of  Way 

Jacob  V.  Dallow,  Right  to  Pews 

V.  King,  Rent 

V.  Worrall,  Powers 


Jacobs  V.  Amyatt,  Trusts 
James  v.  Bion,  Trusts 

V.  Dean,  Chattels  Real 

,  Trusts 


Hutciiins  V.  Lee,  Trusts 
Hutchinson  v.  Glover,  Advowsons 

v.  Morritt,  Trusts 

V.  Scott,  Rent 

Hutton  V.  Warren,  Estate  for  Years 
Hyde  v.  Parratt,  Estate  Tail 

,  Estate  for  Years 

V.  Skinner,  Estate  for  Years 


Hylton  V.  Hylton,  Trusts 
,  Election 

Ibbotson  V.  Beckwith,  Fee  Simple 
Ibbs  V.  Richardson,  Rent 
Iggulden  V.  May,  Estate  for  Years 
Iklerton  v.  Ildcrton,  Dower 
Inchiquin  v.  Burnel,  Estate  for  Years 
Incledon  v.  Northcote,  Assets 

,  Trusts 

,   Dower 


Inglefield's  case.  Uses 
Ingram  v.  Ingram,  Powers 


1611. 


1778 

123 

1906 

246 

1474 

998 

1479 

1528 

1943 

2428 

958 
257 
1525 
1120 
1541 
59 
1889 
1195 
1700 
1980 


,  Ex  parte,  Estate  for  Years 

V.  Frearson,  Trusts 

V.  Hailes,  Life  Estate 

V.  Plant,  Riglit  of  Way 

V.  Portman,   Dower 

V.  Tutney,  Franchises 

James'  case,  Estate  for  Years 
Jeffi-Teys  or  JefFerys  v.  Hicks,  Copy 

holds 
Jeffereys  v.  Small,  Trusts 
,  Estate  for  Years 


§  587 

1277 

1720 

155 

22026 

193-5 

895 

1379 
2094 

258 
1813 
2210 

587 

982 

67 

1871 

257 

799 

1.399 
1158 
1441 
1680 
1973 
2311 
1241 
1354 
1400 
1185 
441 
960 
376 
496 
249 
2066 
1750 
1833 
7 
1802 
1455 
1916 
1037 
367. 391 
1161 
631 
1423 


Jeffery  v,  Sprigg,  Estate  for  Years 
Jeffisrys  v.  Jcffiirys,  Trusts 
Jeffi'y  V.  Boys,  Common 

V.  Guy,  Estate  for  Years 


822 
1783 
1456 
1479 
1806 
271 
1354 
Jemott  V.  Cowley,  Estates  on  Con- 
dition 2194 
Jenison  v.  liCxington  (Ld.),  Rent        12.  164 
Jenkin  or  Jenkins  v.  Ciuirch,  Estate 
for  Years 

V.  Hiles,  Trusts 

V.  Millbrd,  Trusts 

V.  Jenkins,  Fee 

Simple 
,  Waste 


1383 
1874 
1880 

9  63 
2467 
V.  Kemis  or  Kcymiss  1996 


xlii 


TABLE    OF    CASES. 


Jenkin  or  Jenkins  v.  Vivian,  Common  §  280 

1657 

135 

197 

1391 


V.  Young,  Uses 

Jenkinson  v.  Royston,  Tithes 

Jenner  v.  Morgan,  Rent 

Jennings  v.  Bragg,  Estate  for  Years 

V.  Gower,  Estates  on  Con- 

dition 

. V.  Selleck,  Trusts 

V.  Ward,  Mortgage 


Jory  V.  Wikes,  Estate  for  Years 

V.  Cox,  Trusts 

,  Mortgage 


Jennor  and  Hardie's  case,  Powers 
Jentlemen's  case.  Franchises 


2129 

17776 

2202 

2059 

G31. 647 


Ancient  Demesne 


934 
1127 


V.  Pawly,  Copyholds 


Jephson  v.  Riera,  Dower 
Jerman  and  Orchard,  Estate  for 

Years  1386 
Jermyn  v.  Arscott,  Estates  on  Con- 
dition 2130 
Jermyn,  Ex  parte,  Estate  for  Yeara  1447 
Jervis  v.  Bruton,  Estate  Tail  1001 
Jervoise  v.  Northumberland,  Trusts 

1714.1807 

Jesser  v.  Gifford,  Right  to  Water  413 

,  Reversions  2351 

Jesson  V.  Wriglit,  Estate  Tail  986 

Jcssopp  V.  Watson,  Land  and  Money  75 

Jevens  v.  Levcmere,  Estate  for  Years  1449 

Jew  V.  Tirkwell,  Rent  211 

Jewel's  case.  Rent  172 

,  Estate  for  Years  1358 

,  Tenure  734 

Johns  or  Johncs  v.  Lockhart,  Trusts  1750 

V.  Whitley,  Estate 

for  Years  1471.  1502 

Johnson  v.  Freeth,  Trusts  1755 

Johnson  v.  Mason,  Estate  for  Years  1427 

V.  Medlicott,  Estate  for  Years  1414 

Telford,  Trusts,  1930 


Joy  V.  Campbell,  Trusts 
Jurado  v.  Gregory,  Franchises 
Jurden  v.  Stone,  Customary  Estates 

Keane  v.  Deardon,  Trusts 
Keble  v.  Heckripgill,  Waters 
Keech  v.  Hail,  Estate  for  Years 

,  Tenancy  from  Year 

to  Year 
,  Mortgage 


V,  Sadnford,  Estate  for  Years 


Keech  v.  Sand  ford,  Trusts 

Keeling  v.  Brown,  Trusts 

Keen  or   Keene  v.  Cope,  Estate  for 
Years 

V.  Deardon,  Powers 

V.  Dickson,  Remain- 
ders 

V.  Wallbank,      Fee 

Simple 

Kcighlcy's  case.  Sewers 

Keightley  v.  Birch,  Rent 

Kelictt  V.  Kellett,  Trusts 

Kellow  V.  Rowdcn,  Assets 

Kemp  V.  Andrews,  Joint-tenancy 

V.  Derrett,  Tenancy  from  Year 

to  Year 
V.  Goodall,  Estate  for  Years 


§  1353 

1882 
2226 

873 
1916 

676 
2366 

1829 

112 

1398 

1575 
2217 
1536 
1906 
2116 


V.  Kemp,  Powers 


1235 
1959 

2334 

963 
113 

199 

1787a 

35 

2310a 

1579 
1424 

2045 


Johnstone  v.  Huddlcstone,  Rent 

,  Tenancy 

from  Year  to  Y'car  1584 
Jones  V.  Beau,  Otlices  560 
V.  Chamberlaine,  Estate  at  Will    1555 


Kempe  and  Carter's  case,  Cop3'holds 

766.  821 

Ken  V.  Bulkcly,  Powers  2022 

Kcnn's  case.  Curtesy  1078 

256 1  Kennedy  v.  Daly,  Trusts  1798.  1921 


—  V.  Clerk,  Offices 

—  V.  Collier,  Dower 

—  V.  Jones,  Rent 
,  Estate  for  Years 


and  liaughton.  Trusts 

V.  Marsli^  Tenancy  from  Year 

to  Year 
V.  Martin,  Jointure 
V.  Morgan,  Estate  Tail,         901 

,  Trusts 

V.  Powles,  Trusts 


551 

1199 

230 

1509 

1809 


Kennel  v.  Abbot,  J^and  and  Money 
Trusts 


Kenrick  v.  Beauclerk,  Trusts 
or  Kentick  v.  Pargeter,  Com- 
mon 
V.  Taylor,  Right  to  Pews,  &c. 


73 

1794 
1830 


Kenscy  v.  Langham,  Advowsons 
Kensington  v.  Dolland,  Trusts 
Kent  V.  Ilarpool,  Curtesy 


1593 
1242 
1008 
1714 
1821 
1977 

562 
1017 
1718 

257 
1239 
1752 
1G59 
1707 
1383 

386 
1225 
Jourdan  v.  Atwood,  Common  337.  363 
V.  Steere,  Estate  for  Years        1406 


Merger 


V.  Kent,  Dower 
V.  Steward,  Uses 


V.  Price,  Powers 

. V.  Pugh,  Offices 

. V.  Reasby,  Uses 

,    Trusts 

. V.  Reynolds,  Rent 

,  Estate  for  Years 

. V.  Salter,  Trusts 

. and  Ld.  Say  and  Seal,  Uses 

,  Trusts 

V.  Verney,  Estate  for  Years 

Jordan  v.  Attwood,  Right  of  Way 
. V.  Savage,  Jointure 


Kentish  v.  Kentish,  Trusts 
V.  Newman,  Trusts 


Kenworthy  v.  Bate,  Uses 
Kcrslcy  v.  Duck,  Fee  Simple 
Kcttillesby,  Dower 
Kettle  V.  Townscnd,  Powers 
Kettleby  v.  Atwood,  Land  and  Money 
Ketsy's  case.  Estate  for  Y''ears 
Kibbct  V,  Lee,  Powers 
,  Uses 


Kightley  v.  Kightley,  Trusts 
Killick  V.  Flexney,  Trusts 
Kilmurry  (Ld.)  v.  Geery,  Powers 
Kilpin  V.  Kilpin,  Trusts 
Kinaston  v.  Clark,  Assets 
,  Advowsons 


:  Kirby  v.  Whichelow,  Franchises 


314 
496 
122 
1750 
1101 
2452 
1204 
1G77.  1688 
2116 
1812 
1640 
963 
2011 
2011 
61 
1444 
1985 
1677 
2116 
1944 
1972 
1769 
35 
126 
683 


TABLE    OF    CASES. 


xli 


HI 


Kerslake  v.  White,  Estate  for  Years 

§  1279. 
Keymour  v.  Summers,  Right  of  Way 

,  Dower 

Kidney  v.  Coussmaker,  Powers 
Kildare  v.  Eustace,  Trusts 
Kimpton   and   Bellamy's,  or  Ramp- 
ton's  case,  Common 
King  V.  Ballet,  Assets 

V.  Boys,  Uses 

V.  Burchcll,  Estate  Tail 

V.  Cotton,  Trusts 

■  V.  Delliston,  Copyholds 

V.  Denison,  Trusts 

V.  Holland,  Trusts 

V.  King,  Assets 

-,  Mortgage 


1299 

392 

1200 

2116 

1824 


V.  Moiling,  Estate  Tail 
V.  Moody,  Copyholds 
V.  Rumball,  Estate  Tail 
V.  St.  Dunstan,  Fixtures 
V.  Smith,  Mortgage 


333.  338 

33 

1623 

991 

1806 

902 

1826 

1710 

46 

2276 

979.  985 

870 
979 

20 
2218 


Lacam  v.  Mertins,  Assets 
Lacon  v.  Higgins,  Dower 
Lacy  V.  Anderson,  Jointui'e 
Lade  v.  Baker,  Rent 

V.  Holford,  Uses 

Lake  v.  Craddock,  Joint-tenancy 

V.  De  Lambert,  Trusts 

,  Powers 

V.  Gibson  or  Craddock,  Trusts 

V.  Shepherd,  Ways 

V.  Smith,  Rent 

Lamb.  v.  Mills,  Rent 
Lambert  v.  Nnrris,  Rent 
V.  Parker,  Trusts 


Lampayo  v.  Gould,  Powers 
Lampcl's  case.  Estate  Tail 

,  Dower 

— ,  Estate  for  Years 


Kingsland  (Ld.)  v.  Barnewall,  Estate 

for  Years 
Kingsman  v.  Kingsman,  Trusts 
Kingsmill  v.  Ball,  Copyholds 
Kinnerslcy  v,  Orpe,  Lands 

,  Waters 

Kirby  v.  Sadgrovc,  Common 

V.  Mash,  Trusts 

Kirk  V.  Webb,  Trusts 

Kirkby   Ravensworth   Hospital,   Ex 

parte.  Franchises 
Kirkham   v.   Cliadwick,   Estate    for 
Years 

V.  Necdham  Jointure 

V.  Smith,  Estate  Tail 

Kirkham  v.  Jervis,  Rent 

V.  Miles,  Land  and  Money 

V.  Thompson,  Jointure 

Kirtland  v.  Pounsett,  Rent 
Kirton  v.  Elliott,  Estate  for  Years 
Knevet  v.  Pool,  Estate  for  Years 
Knevet's  case.  Estate  for  Years 
Knight  V.  Bampfield,  Jointure 

V.  Bennett,  Rent 

V.  Cameron,  Condition 

V.  Framptom,  Dower 

V.  Freeman,  Rent 

V.  Knight,  Trusts 

V.  Wells  (Mayor,)  Franchises 

Knight's  case,  Rent 
Knightley  v.  Buckly,  Rent 
Knipe  v.  Palmer,  Estate  for  Years 
Knotsford  v.  Gardiner,  Lands 

V.  Luce,  Copyholds 

Knott,  Ex  parte,  Mortgage 

V.  Wise,  Life  Estate 

Knowlcs  V.  Powell,  Estate  for  Years 

V.   Richardson,   Right    to 

Light,  &c. 
Kooystra  v.  Lucas,  Right  of  Way 

. ,  Estate  for  Years 

Kynaston  v.  Clarke,  Estate  Tail 

,  Reversion 

, V.  Kynaston,  Assets 


Lamplugh  v.  Lamplugh,  Trusts    1786 
Lancaster  Can.  Company,  Ex  parte. 

Fixtures 
,  Heir 


§  48 

1122 

1225 

189 

1686 

2307 

1826 

2105 

1783 

102 

255 

247 

151 

1889 

2104 

998 

1185 

1313 

,1826 


Lloyd,  Jointure 


1453 

1768 

816 

87 

108 

318 

1864 

1785 

721 

15.30 
1244 
1907 

206 

77 

1261 

258 
1444 
1472 
1472 
1250 

242 
2129 
1173 

205 
1773 

700 

177 

205 

1412 

86 

825 
2247 
1036 
1450 

464 
307 
1299 
1031 
2351 
40 
1263 


24 

83 
Lancaster  and  Lucas's  case,  Copyholds    823 

,  Estate  for  Years     1343 

Lancy  v.  Fairchild,  Land  and  Money        62 
Landydale  v.    Cheyney,    Estate    for 

Years 
Lane's  case.  Copyholds 
,  Estate  for  Years 


Lane  v.  Cotton,  Uses 

V.  Dighton,  Trusts 

V.  Page,  Jointure 

,  Powers 


V.  Pannel,  Uses 
V.' Stanhope,  Lands 


13S8 
864 
1331 
1661 
1785 
1240 
2084 
1699 
86 
1848 
915 
1994 
2066 
844 


Longston  v.  Blackmere,  Powers 
Ex  parte.  Mortgage 


Langford  v.  Gaseoyne,  Trusts 
Langham  v.  Lawrence,  Copyholds 

V.  Nenny,  Powers 

Langlcy  v.  Brown,  Powers  2035. 

V.  Chute,  Right  to  Pews 

V.  Sneyd,  Trusts  171 7.  1836 

,  Title  by  Descent    2404 

2043 

2204 

1798 

1779 

51 

804 

2130 

871 

2055 

25 

331 

775 

1260 

2176 


Langton  v.  Astrey,  Trusts 

V.  Tracy,  Trusts 

Lanoy  v.  Athol  (D.),  Assets 
Lanyon  v.  Carne,  Copyholds 
Large's  case.  Estates  on  Condition 
Lashmer  v.  Avery,  Copyholds 
Lassels  v.  Cornwallis  (Ld.),  Powers 
Latham  v.  Atwood,  Emblements 
Lathbury  v.  Arnold,  Common 
Laughter  v.  Humphrey,  Copyholds 

,  Jointure 

Laughter's  case,  Estates  on  Condition 
Laughton  or  Lawton  v.  Ward,  Right 

of  way 
Launder  v.  Brooks,  Tenures 
Lavender  v.  Blackstone,  Powers 
Law  v.  Davis,  Estate  Tail 
v.  Law,  OtRccs 

v.  Lewcllyn,  Powers 

Lawes  v.  Bennett,  Land  and  Money 
Lawrence   v.    Beverley,    Land    and 

Money 
V.  Butler,  Estate  for  Years 


376 

753 

20686 

987 

574 

1994 

76 

63 
1529 


xliv 


TABLE     OF     CASES. 


Lawrence  v.  Lawrence,  Dower  § 

v.  Maofg-,  Estate  for  Years 

V.  Obeo,   Right  to   Light, 

&.C. 

,  Nuisance 

Lawson  v.  Hare,  Franchises  633 


V.  Hudson,  Assets 


Lawson  v.  Laude,  Estate  for  Years 
Lavvton  V.  Lawton,  Fixtures 
Lea  V.  Burton.     See  Barton's  case 
Leach  V.  Thomas,  Fixtures 
V.  Trollope,  Jointure 


Leake  v.  Coventry,  (Bp.)  Next  Avoid- 
ance 
Lechraere   v.   Carlisle,    Land    and 

Money 

,  Jointure 

,  'I'rusts 


V.  Charlton,  Assets 
V.  Lavie,  (not  Lairc)  Trusts 
.77 


1195 
1535 

460 

2401 

646 

48 

1279 

19 

23 
1248 

127 

61 
1231 
1759 

47 


Leigh  V.  Sheppard,  Rent 

V.  Winter,  Powers 

Lcight  V.  Brace,  Estate  Tail 

V.  P\'m,  Franchises 

Leighton  v/Thced,  Estate  at  Will 
Lechlbrd's  case,  Copyiiolds 
Le  Maitre  v.  Bannister,  Trusts 
Lomen  v.  Blackwell,  Manors 

V.  Lemon,  Dower 

Lcnipriere  v.  Martin,  Copyholds 
Lempster  v.  Pomfret,  Trusts 
Lench  v.  Lench,  Trusts 
Leniel  v.  Hnrslop,  Common 
Lennon  v.  Napper,  Trusts 
Leonard  v.  Sussex,  (Ld.)  Trusts 
V.  Sussex,  (Lady)   Life  Es- 
tate 


Lee  V.  Alston,  Trees 

V.  Arnold,  Uses 

V.  Boolhby,  Copyholds 

V.  Brown,  Trusts 

,  Customary  Estates 

V.  D'ArandiL,  Jointure 

v.  Drake,  Olhces 

V.  Ganscl,  Houses 

v.  Lopes,  Rent 

V.  Prideaux,  Trusts 

V.  Risden,  Fixtures 

V.  Vernon,  Estate  lor  Years 

V.  ^'incent,  Powers 

V.  Young,  Powers 


Leonard's  (Master)  case.  Franchises 
Lepur  and  Wroth's  case.  Estate  lor 
Years 
1771.  1774lLe  Taverner's  esse.  Estate  for  Years 
1045jLethbridge  v.  Winter,  Ways 
1663|Lethulier  v.  Castlemain,  Copyholds 

840  Levcridge  v.  Hoskins,  Right  to  Water 
1887;Levieh  v.  Coppin,  E:^tate  for  Years 
2355  Lewellin  v.  Mackworth,  Trusts 
1244.Lcwin  v.  Oakley,  Assets 

596 1 ,  Trusts 

89 1  Lewis  v.  Bennett,  Next  Avoidance 
200; V.  Braithwaite,  (not  Branthwaite) 


§226 
2024 

977 

683 
1558 

902 

1774 

88 

1195 

787 
1936 
1785 

279 
1955 
1816 

1034 
712 

1333 

1466 

103 

915 

433 

1443 

1729 

42 

1725 

128 


1751 

22  ■ 
15341- 
1976'- 


Mines 
-,  Copyholds 


Lee's  case,  Ofliees 

,  Estate  Tail 

,  Estate  for  Years 

,  Powers 

Leecii  V.  Leech,  Trusts 

—  V.  Trollof),  Estate  Tail 


Leeds  v.  Compton,  Estate  lor  Years 

V.  Munday,  Trusts 

. V.  N.  Radnor,  (Corp.)  Commons 

V.  Shakesby,  Easements 

——  (D.)  V.  Powell,  Connnons 

,  Copyholds 

V.  Shakesbv,  Nuisaucc 

V.  Stafford,'  (E.)  Copyholds 


595 

981 

1487 

1990,  2071 

1779 

1007 

1513 

1847 

95 

528 

95 


•  V.  Maddocks,  Jointure 
■  V.  Nangle,  Assets 
1983  Lcwison  or  Lcwson  v.  Pigot,  Rent 


Estate 


for  Years 
Lichfield  v.  Baker,  Trusts 
Liefe  v.  Saltingstonc,  Powers 

V.  Young,  Tithes 

Liford's  or  LilTord's  case,  Trees 


Lands 
Waste 


Liggins  V.  Inge,  Right  to  Water 
,     Easements 


915jLtllingtou's  ease.  Rent 
2464  Liminoftou    Constables' 


916 

1884 
991 


Leeke  v.  Bennett,  Trusts 
Legate  V.  Sewell,  Estate  Tail 
Lcgg  or  Legge  v.  Burrion,  Tenancy 

from  Year  to  Year  1585 

,  V.  Croker,  Estate   for 

Years  1415 

. V.  Goldwire,  Trusts         1810 

V.  Strudwick,  Estate  for 

Years  1277. 1518 

,  Tenancy  from 

Year  to  Year    1566 
Leicester  Forest  case.  Franchises     624.  684 


case. 


Fran- 


chises 
Lincoln  (E.)  v.  Fisher,  Franchises 

V.  Wright,  Trusts 

I^indon  v.  Fleetwood,  Trusts 
Lindsey  v.  Lindscy,  Dower 
Linguen  v.  Souray,  Land  and  Money 
Linsden   v.    Winsmorc,    Estate    for 

Years 

,  Mortgage 


101 

855 

1242 

47 

177 

1374 

1885 

2060 

135 

25. 

1045 

86 

2470 

.399 

522 

183 

648 

651 

1916 

1819 

1204 

62 

1485 
2264 
601 
2034 


Town  case,  Francliises 
,  Ancient    De- 


mesne 
Leicester's  (E.)  case,  Powers 
Leigh  V.  Barr)-,  Trusts 
V.  Burley,  Waters 


1986, 


684 

928 
2075 
1910 

105 


L'Isle  Peerage,  Dignities 

Lisle  V.  Lisle,  Powers 

Lister  or  Lyster  v.  DoUand,  Trusts 

1738.  1783 

,  :\rortgage    2264 

. ,  Joint-te- 

2311 

1944 

11 

380 


nancy 
V.  Lister,  Trusts 


Littleton's  ease.  Mortgage 
Livctt  V.  Wilson,  Right  of  Way 


TABLE    OF    CASES. 


xlv 


Llewellyn  v.  Williams,  Estate   for 

Years 
Lloyd  V.  Carew,  L^ses  ]  G83. 
V.  Crisp,   Estate    for  Years 


V.  Gregory,  Estate   for 

Years  130L 

V.  Read,  Trusts 
V.  Rosbee,  Rent 
V.  Spillet,  Heir 
Trusts 


1410 


V.  Winton,  Copyholds 

Loader  v.  Samwell,  Franchises 
Lock  V.  Lock,  Trusts 

V.  Logfgin,  Powers 

Lockey  v.  Lockey,  Trusts 
Locton  V.  Locton,  Trusts 
Loddinglon  or  Luddington  v.  Kime, 

Fee  Simple 

,  Estate  Tail 

,  Life  Estate 

,  Powers 

,  Remainders 

Logan  V.  Barton,  Riorht  of  Way 
Lomos  V.  Wright,  Assets 
Lomax  V.  Bird,  Mortgajje 

V.  Lomax,  Trusts 

London's  (Bp.)  case,  Common 
London  (Bp.)  v.  Southwcl,  (Chapl.) 
Advowsons 

V.  Webb,  Waste 

,  Life  Estate 

London  (City)  v.  Dias,  Rent 
V.  Garway,  Land  and 

iMoney 

V.  Graeme,  Waste 

V.  Hunt,  Ways 

,  Water 

V.  Mitford,  Estate  for 

Years 

V.  Vanaire,  Franchises 

London's  (City)  case,  Franchises 
Londonderry  v.  Wayn,  Jointure 
Long  V.  Beaumont,  Estate  Tail 

V.  Dennis,  Estates  on  Condition 

V.  Direcll,  Waters 

V.  Rankin,  Powers 

V.  Short,  Assets 


Longdon  v.  Simson,  Trusts 
Longford  v.  Eyre,  Powers 
Longmore  v.  Elcum,  Trusts 
Lonsley    or   Lonsler   v,  Heywood, 

Churches 

,  Right  to  Pews 

Lovat  V.  Ld.  Ranclagh,    Estate  for 

Years 
Love  and   Windham's  case,  Estate 

Tail 
Loveacre  v.  Blight,  Fee  Simple 
Lovell  and  Golston's  case.  Franchises 
Lovie's  ease.  Chattels  Real 

,  Powers 

Lovie's  case.  Remainders 
Lougher  v.  Williams,  Heir 
Low  V  Burron,  Li!b  Estate 
Lowden  v.  Hieron,  Franchises 
Lowe  V.  Griffitli,  Estate  for  Years 


i3or 

1699 
1455 
1509 

.1497 

1786 

255 

82 

1792 

816 

646 

1881 

1975a 

1954 

1761a 

950 

988 
10.30 
2063 
2333 

389 

54 

2265 

1889 

340 

131 

1042 

1042 

150 

72 

2468 
102 
109 

1529 
701 
727 

1239 
976 

215 
108 

2024 
56 

1716 

1984 

1771 

90 

487 

1293 

984 

961 

631 

7 

2063 

2330 
80 

1051 
694 

1444 


Lowes  V.  Davidson,  Copyholds  890 

Lowndes  v.  Hornc,  Tithes  134 

Lowry  v.  Fulton,  Trusts  1841 

Lowson  V  Ccipelund,  Trusts  1883 

Lowther  v.  Carlton,  IVusts  1799 

Lowtiiian  v.  Hassel,  Mortgage  22746 

Lowton  v.  Lowton,  Estate  Tail  992 

Lucas  V.  Cakraft,  Dower  1209 

v.  Cmnmeribrd,  Mortgage  2208 

V.  Dorrien,  Mortgage  2207 

Lucena  v.  Lucena,  Powers  2007 
Luckin  v.  Rushworth,  Estate  for  Years  1534 

Lucy  V.  Levington,  Heir  80 
Luddington.     See  Loddington. 

Ludford  v.  Barber,  Estate  for  Years       1385 

Ludlow  v.  Beckwith,  Rent  1 77 

,  Ex  parte.  Land  and  Money  78 

I,ufFliin  v.  Nunn,  Copyholds  871 

Lukin  v.  Eve,  Franchises  651 

Lumb  V.  Milnes,  Trusts  1750 

Lunsford  V.  Popham,  Copyholds  913 

Luntley's  case,  Dignities  619 
Lushington    v,  LandlafF  (Bp.,)    Ten- 
ures 

V.  Sewell,  Fixtures 

Lutkins  v.  Leigh,  Assets 
liUttrel  V.  Weston,  Copyholds 
Luttrel's  case.  Common 

,  Right  of  Way 

,  Right  to  Water 


Lyddal  v.  Weston,  Mines 
Lutwyche  v.  Lutw3^che,  Tenures 
Lyde  v.  Russell,  Fixtures 
L3'ddal  v.  Weston,  Fee  Simple 
Lydiat  v.  Fouch,  Estate  for  Years 
I/ynch  V.  Spencer,  Jointure 
Lynn  (May.)  v.  Taylor,  Copyholds 
V.    Turner,    Right 


to 


Water 
Lyse  (not  Lyre)  v.  Kingdom,  Fran- 
chises 

(not  Lyre)  v.  Kingdom,  Trusts 

Lyster.     See  Lister. 


75G 

20 

45.  55 

876 

340 

383 

422 

98 

750 

22 

966 

1539 

1260 

860 

423 

712 
1857 


1989, 
Heir- 


Mabic's  case.  Manor 

Mac  Adam  v.  Logan,  Powers 

Macclesfield    (E.)    v.    Davis, 

looms 
Macclesfield  (May.)  v.  Pedly,  Fran. 

chises 
Macdonel   v.  Weldon,    Estate    for 

Years 
Maccy  v.  Shurmer,  Trusts 
,  Powers 


Machell  v.  Clarke,  Estate  Tail 

and  Dunton's  case,  Estate  for 

Years 
,  Estates  on  Condition 


Mackenzie  v.  Robinson,  Advowsons 
Mackintosh  v.  Trotter,  Fixtures 
M'ClcUand  v.  Shaw,  Assets 
M'Cleod  v.  Drummong,  IMortgage 
Mackreth  v.  Simmons  (not  Symmons 
or  Symons,)  Trusts    1 761 
,  Mortgage 


M'Leroth  v.  Bacon,  Powers 
M'Queeu  v.  Farquhar,  Trusts 


18 

2084 

16 

692 

1270 
1771 

2010a 
1004 

1502 
2139 
120 
22 
49 
2210 

1798 
2210 
2049 
1793 


xlvi 


TABLE     OF    CASES. 


M'Queen  v.  Farquahar,  Powers         §  2010/? 

Macshell  V.  Nevinson,  Franchises  718 

Madden    v.  White,     Tenancy    from  | 

Year  to  Year  1568 

Maddison  v.  Andrew,  Trusts  1 805 

,    Powers  1990 

Magdalen  Coll.  case,  Estate  for  Years  1347 
Magennis  v.  MaccuUogh,    Estate  for 


Marlborough  School,  In  re.  Trusts     (j  1827 
Marler  v.  Wright,  Estate  for  Years       1333. 

1365 
Marlow  (not  Maston)  v.  Smith,  Trusts 

1800.  1821 
Marryat  v.  Townlcy,  Trusts  1808 

Marsh  v.  Curtis,  Estates  on  Condition  2187 


Years 

Maguire  v.  Scully,  Trusts 
Mainwaring  v.  Giles,  Right  to  Pews 
Major  V.  Brandwood,  Copyholds 

V.  Chadwick,  Right  to  Water 

Makeham  v.  Hooper,  Assets 
Makepeace  v.  Fletcher,  Uses 
Malcolm  v.  O'Callaglian,  Trusts 
Maldon's  case.  Estate  for  Years 
Malim  V.  Barker,  Trusts 

•  V.  Keighley,  Trusts 


1499 

1814 

484 

806 

408 

5 

1665 

1755 

1282 

1771 

1773 

20686 


V.  Lee,  Mortgage 


Marshall  v.  Allen,  Ancient  Demesne 

V.  Holloway,  Trusts 

V.  Lloyd,  Fixtures 


2249 

936 

1716 

90 


Marshara  orMassam  v.  Hunter,  Com 

raon 
•,  Copyholds 


Maling  v.  Hill,  Powers 

Mallabar  v.  3Iallabar,  Land  and  Money    73 

. ,  Trusts  1787a 

Mallam  v.  Arden,  Rent  193 

Mallet   V.   Mallet,   Estate    for  Years 

1320.  1336 


Mallory's  case.  Rent 

__ — ,    Estates  on  Condition 

Manby  v.  Long,  Franchises 
Mancliester  Mills  case.  Mills 
Manchester  Coll.  v.  Trafford,   Estate 

for  Years 
Manlove  v.  Ball,  Mortgage 
Mann  or  Mann  v.  Bristol  (Bp.,)  Next 
Presentation 

V.  Lovejoy,   Tenancy 

from  Year  to  Year 

V.  Ricketts,  Trusts 

Manningford  v.  Toleman,  Trusts 
Manneton  or  MoUiton  v.  TreviUan, 

Commons 
Manning  v.  Cox,  Trusts 

,  Ex  parte.  Trusts 

V.  Spooner,  Assets 

V.  Wasdale,  Right  of  Way 

. ,  Right  to  Water 

Manning's  case.  Estate  Tail 

,  Life  Estate 

Estate  for  Years 


163 

2192 

704 

93 

1307 
2202 


332 

860 
88 
230 
2310a 


Marslie  and  Smythe's  case,  Manors 
Martin  v.  Burton,  Rent 

V.  Crump,  Joint-tenancy 

V.    Gable,    Right    to    Light, 

&,c.  447.  456 
V.  Knowlys,  Tenancy  in  Com- 


mon 

V.  Strachan,  Trusts 
— ,  Descent 


Marwood  v.  Turner,  Assets 
Mary's  case.  Common 
Marsham  (Ld.)  v.  Harding,  Assets 
Maskciyne  v.  Maskelyne,  Powers 
Mason  v.  Bogg,  Assets 

V.  Caesar,  Common 

V.  Hill,  Right  to  Water 


1566 
1955 
1765 

276 
1866 
1761 
50 
302 
410 
998 
1025 
1386 
Mansell  v.  Mansell,  Trusts  1798.  1800.  1821 

,  Powers  1980 

Mansfield's  case.  Jointure  1234 

Mantcll    or    Mantle    v.    Wallineton, 

Estate  for  Years  1408 

—  V.  Weekington 

838 
802.  953 
992 
828 
682 
712 
80 


Massey  v.  Parker,  Trusts 
Masters  v.  Pollie,  Woods,  &c. 

V.  Scroggs,  Waters 

Maston.     See  Marlow. 
Mattliews  v.  Carey,  Franchises 

V.  Cartwright,  Mortgage 

V.  Sawell,  Rent 

■,  Estate  for  Years 


23186 

1717 

2402 

33 

352 

42 

2059 

54 

324 

399.  439 

1755 

96 

113 


■  V.  Walwyn,  Mortgage 

■  V.  Whetton,  Copyholds 


or  Wallington,  Copyholds 
Manxell's  case,  Copyholds 

,  Estate  Tail 

Marke  v.  Sulyard,  Copyliolds 
Market  overt  case.  Franchise 
Markiat's  (Prior)  case,  Franchises 
Mark's  v.  JMarks,  Heir 
,  Estates  on    Condi- 
tion 


655 
2247 
257 
1495 
2242 
875 
',  Estate  for  Years  1399 
Matthias  v.  Mcsnard,  Rent  239 

Maugham  (not  Maughan)  v.  Mason, 

Trusts 
Maunde's  case,  Rent 
IMaundrell  v.  INIaundrcll,  Dower 

,  Trusts 

,  Powers 

,  Remainders 


1794 
252 
1163 
1743 
2025 
2334 
198 


Mavor  v.  Croome,  Rent, 

Maxwell  v.  Ashe,  Estate  for  Years 

1430.  1539 

V.  Dulwich,  (Coll.)  Franchises   705 

494 
2314 
1184 


May  V.  Gilbert,  Right  to  Pews 
v.  Hook,  Joint-tenancy 


2136 


Marlborough  (D.)  v.  Godolphin,  Life 

Estate    1051 
.Powers  1959o 


Mayne's  case,  Dower 
Mead  or  Meade  v.  Lenthall,    Estate, 
for  Years 

V.  Orrery,  (Ld.)  Es- 

tate  for  Years 
Meadows  v.  Patherick,  Copyholds 
Medlicott  v.  O'Donnell,  Trusts 
Meggison  v.  Moore,  Trusts 
Mcinertzhagen  v.  Davis,  Powers 
Mellcr  V.  Walker,  Common 
Mellor  V.  Lees,  Mortgage 


1464 

1457  > 

917 

1731 

1772 

2107 

273 

2202 


TABLE     or     CASES. 


xlvii 


Mellow  V.  May,  Estate  for  Years  §  1492 
Melsington  v.  Musgrave,  Estate  for 

Years  1539 

Melton's  case,  Estate  Tail  after,  &c.  1068 
Melwich  V.  Luter,  or  Mehvicli's  case, 

Manors,  88 

,  Franchises         635 

,  Copyholds  767.  875 

MenviU's  case,  Dower  1128.  1185 

Menzies   v.   Breadalbane,   Right   to 


Monk  V.  Butler,  Easements 
,    Estate  for  Years 


Water 
Meredith  v 

V, 


Gilpin,  Title 
Hencage,  Trusts 

V.  Jones,  Uses 

Meriton  v.  Gilbee,  Rent 

Merlins  v.  Joliffe,  Trusts 

Messenger  v.  Armstrong,  Tenancy 
from  Year  to  Year 

Mestaer  v.  Gillespie,  Trusts 

Metcalf  or  Scott  v.  Scholcy,  Trusts 

Meure  v.  Meure,  Trusts 

Meux  V.  Bell,  Trusts 

Miall  V.  Brain,  Dower 

Michael  and  Christmas,  Common 

Midliurst  v.  Waite,  OfBces 

Middleton  v.  Cater,  Dower 

V.  Crofts,  Powers 

V.  Janverin,  Dower 


421 

2378 
1773 
1648 
230 
1799 

1570 
1822 
1738 

1808 

1880 

1196 

2S8 

567 

1195 

1969 

1122 

1903 

999 

1690 

2134 

31  i  Id  ma}'  v 

Estates  "  '       2359 

Miles  V.  Rose,  Right  of  Way  372 

V.  Williams,  Annuity  263a 

Milfax  V.  Baker,  Copyholds  888 
Millard's  case.  Trusts  1821 
Miller  v.  Mainwaring,  Curtesy  1112 
,  Estate  for  Years 

1300.  1499 

V.  Walker,  Common  282 

V.  Warmington,  Commons  95 

V.  Milles,  Estate  for  Years  1534 

Milliner  v.  Robinson,  Estate  for  Years  1403 


V.  Spicer,  Trusts  1713, 

Mildmay's  case,  Estate  Tail 

,  Uses  1631, 


,  Estates  on  Condition 

Hungerford,  Customary 


(Ld.) 
Powers 


Mills  V.  Mills,  Trusts 

V.  Parsons,  Uses 

V.  Robart,  Trusts 

V.  Ward,  Common 

Milne  or  Milner  v.  Harewood, 

Jointure 

Milnes  v.  Slater,  Assets 
Mil  ward  v.  iMoore,  Powers 

V.  Thatcher,  Offices 

Mine's  case.  Fee  Simple 

Minshull  v.  Minshull,  Estate  Tail 

Mirehousc  v.  Scaife,  Powers 

Mireton  v.  Gilbee,  Rent 

Mitchell  V.  Bower,  Trusts 

Mitford  V.  Mitford,  Trusts 

Mitton  V.  Lutwich,  Reversions 

Mitton's  case.  Offices 

Mogg  V.  Hodges,  Assets 

Mole  V.  Smith,  Dower 

Molyneux's  case.  Tenancy  from  Year 

to  Year 


9  514 
1463 

, V.  Cooper,  Rent  202 

Monk's  case.  Rent  240 

Montague's  (Lady)  case,  Copyholds  875 

,  Estate  for 

Years  1399 

Montford  v.  Cadogan,  Trusts        1822,  1951 

Moodelly  v.  Morton,  Franchises  711 

Moodie  or  Moody  v.  Garnance  or  Gar- 

non.  Rent  12.  214 


1885 

1632 

1889 

272 

1215 

1973 

50 

1975a 

561 

963 

990 

2115 

254 

1889 

1822 

2346 

534 

58 

1176 

1569 


Estates  on  Condition   2142 

%'.  Matthews,  Estate 

for  Years  1430 

V.  Walter,  Trusts         1867 

JMoore  or  Moor  v.  Brown,  Right  to 

Water  441 

. ,  Nuisance  2464 

V.  Foley,  Estate  for 

Years     1525.  1527 
V.  Frowde,  Trusts  1927 

V.  Huntingdon,  Copy- 

holds 913 

V.  IMagrath,  Uses  1641 

V.  Mellor,  Fee  Simple      960 

V.  ]Moore,  Customary 

EsUtes  2355 

V.  Musgrave,  Estate 

for  Years  1304 

V.  Pit,  Copyholds  864 

V.  Rawson,  Right  of 

Way  382. 384 

,  Right  to 

Light,  &c.  445 

v.  W'ickers,  Franchises  646 

, V.  Woodgame,  Copy- 
holds 883 
Mordaunt  \.  Peterborouffh,  (E.)  Powers  1983 

V.  Thorold,  Dower  1204 

More's  case,  Estate  for  Years  1509 

Morgan  v.  Bissell,  Estate  for  Years        1282 

V.  Curtis,  Right  to  Pews  487 

V.  Evans,  Right  to  Water  423 

,  Ex  parte,  Trusts  1840 

V.  Griffiths,  Estate  Tail  981 

V.  Morgan,  Curtesy  1108 


V.  Slaughter,  Estate  for  Years  1509 

Morgell  V.  Paul,  Tenancy  from  Year 

to  Year  1571 

Morice  v.  Durham,  (Bp.)  Trusts  1772 

Morley  v.  Bird,  Trusts  1703 

Morrct  v.  Paske,  Mortgage  2256 

Morrice  v.  Antrobus,  Rent  176 

Morris  v.  Barry,  Estate  for  Years  1403 

V.  Ld.  iierkeley,  (Lessees) 

Right  to  Light,  &c.  475 

V.  M'Culloch,  Offices  587 

V.  Dimes,  Woods,  lie,  96 

V.  Edffington,  Right  of  Way 

^    ^  368.397 

V.  Stevenson,  Dower  1186 

Morrison  v.  Morrison,  Trusts  1927 

3Ioore  v.  Falkner,  Copyholds  779 

V.  Roval,  Trusts  1943 

V.  Webbe,  Common,  272.  340 

Morten  v.  Roe,  Ancient  Demesne  937 


xlviii 


TABLE    OF     CASES, 


Mosley  or  Mosley  v.  Chadwick,  Fran 
chiscs 


!  Neachcl,  In  ix>,  Trusts  -        §1862 

§69GjNeatc  v.  Marlborouj^li,  (D.)  Statute 


V.  Mosley,  Powers  20151     ^Merchant,  ite. 


— — V.  Pierson,   Fran- 
chises 
■ V.   Walker,   Fran- 
chises 
Moses  V.  Levi,  Trusts 
Moss  V.  Galliniore,  Rent 

,    Estate  for  Years 

J-:- ,  Mortgage 

Mott  V.  Burton,  Trusts 

V.  Buxton,«Copyholds 

Moalton  v.  Hutchinson,  Powers 
Mountfort,  Ex  parte,  .Alortgago 
Mountjoy  v.  Terdrue,  Common 
,  Estate  for  Years 

Mountjoy's  case,  Rent 

,  Copyholds 

■ ,  Estate  lor  Years 

1323, 


'Ncave  v.  Alderton,  Assets 


V.  Moss,  Estate  for  Years 


683 1 

I  Nelson's  case,  Common 
630  Nepcan  v,  Goddard,  Copyholds 
1916  Nesbit   v.   Tredcnnick,"  Estate 
201  i     Years 
1390  Notliertonv.  Waters 
2213  Nevil's  case,  Annuities 

,  Offices 

,  Dignities 

,  Estate  Tail 


for 


1T07 

914 

2037 

2203 

331 


971 


1462 
176 
821 


Mounton  V.  Lyster,  Offices 

Mousley  v.  Carr,  Trusts 

Moyle  V.  Meyle,  Waste 

Moyse  or  Movses  (not  Moyre)  v.  Giles 

Trusts  1783 


1371 

535 

1922 

2469 


Xevil  and  Saunders,  Uses 

V.  Saunders,  Trusts  1707. 

Nevill  or  Neville  v.   Hopicrton, 

Common 

V.  Joddrcll,  Common 

V.  Rivers,    Estate 

Tail 
Newcastle  (D.)  v.  Lincoln,  (Countess) 

Trusts 
Newcomb  v.  Bonham,  ^Mortgage 
Newman  v.  Anderton,  Rent 

V.  Newman,  Copyholds 

,  Dower 


2294 
45 

1427 
336 
837 

1534 
113 
263 

583 

607 

992 

1658 

1629 

322 

95 

980 

1818 

2202 

172 

834 
1200 


961 

88 

917 


Joint-tenancy    2313 
Muclow  V.  Fuller,  Trusts  1SS3 

Muckleston  v.  Brown,  Trusts        1766.  1768 
Mullineux  v.  MuUineux,  Commons  95 

Mulvany  (not  Mulvaney)  v.  Dillon, 

Trusts  ^       1844 

Muinma  v.  Mumma,  Trusts  1786.  1826 

INIundy  v.  Mundy,  Dower  1205 

Munroe  v.  Kerry,  (Lord)  Estate  for 

Years  1428 

Murless  v.  PVanklin,  Trusts 
Murray  v.  Wise,  Fee  Simple 
Murrel  v.  Smith,  Manor 
Musgrave's  case.  Copyholds 
Musgrave  v.  Cave,  Common 

,  Copyholds 

Musprat  v.  Gregory,  Rent 

flutter  V.  Chauvel,  Advowsons  120! 

Nab  V.  Nab,  Trusts 
Nagle  V.  Edwards,  Tithes 
Nail  V.  Punter,  Trusts 
Nairn  v.  Prowse,  Trusts 
Naish  v.  Tatlock,  Rent 
Nalson  v.  Kcnnington,  Copyholds 
Nandick  v.  Wilkes,  Trusts 
Nannoch  v.  ITorton,  Powers 
Napier  v.  Napier,  Powers 
Napper  v.  Sanders,  Remainders 
Nash  and  Ashton,  Estates  on  Condi- 
tion 2187 

V.  Derby,  (E.)  Copyholds  875.  915 

v.  Preston,  Dower 

— —  V.  Smith,  Trusts 

V.  Turner,  Estate  for  Years 


Brandling,  Right   of 


363. 397 
93 
1725 
2474 
1785 
1754 
2362 
260 


Newmarsh 

Way 
Newte  V.  Chamberlain,  ^lills 
Newton  v.  Bcnnet,  Trusts 

V.  Harland,  Entry 

V.  Preston,  Trusts 

V.  Reid,  Trusts 

v.  Shafto,  Customary  Estates 

V.  Weeks,  Annuity 

Nichols  or  Nicholls  v.  Nichols,  Estate 

for  Life  1415,  1416 

V.  Parker,  Tithes        135 

V.  ShetTield,  Uses      1682 

1843 

1038 

1720 

913 

1173 

1837 

37 

95 

1437 

17776 

93 

695 

1479 

1715 


Nicloson  V.  Wordsworth,  Trusts 
Nio-Iitingale  v.  Lawson,  Life  Estate 
28liNorclitr  v.  Worsley,  Trusts 
835JNoden  v.  Griffiths,  Copyholds 
239  Noel  v.  Jevon,  Dower 


Trusts 


v.  Robinson,  Assets 


1765;  None  v.  Reed,  Commons 
136  Norden  v.  Levett,  Estate  for  Years 


Norfolk  (D.)  V.  Brown,  Trusts 
V.  Myers,  Mills 
,  Franchises 


1951 
1761 

258 

905 1  Norfolk's  (D.)  case,  Estate  for  Years 

809 ! ,  Trusts 

1994.Norrice  or  Norris  v.  Baker,  Woods, 

1994  i     &e 

2333 


96 
810 


V,  Norrice,  Copy- 
holds 
V.  Trist,  (not  Turst) 
Estate  for  Years    1399 
638 
916 


Notion  V.  Tozcr,  Rent 
Naylor  v.  Arnitt,  Trusts 

v.  Baldwin,  Dower 

,  Jointure 


1173  Norris  (Ld.)  v.  Barret,  Franchisas 

1789' V.  Le  Neve,  Copyholds 

1426' v.  Staps,  Franchises  701 

207  Norse  and  Webb's  case.  Common  271 

1880  North  v.  Ansell,  Jointure  1241 

1185  V.  Champernoon,  Life  Estate  1056 

1257 ,  Trusts  1720 


TABLE    or    CASES. 


xliz 


North  V,  Coe,  Commons 

,  Copyholds 

— -  V.  Compton,  Trusts 

V.  Dacre,  Manors 

V.  Hovk',  Ancient  Demesne 

Northampton  'Ld.y  v.  St.  John,  (Ld.) 

Franchises 

''Ma.j.j  r.  Ward,  Fran- 
chises 

Northcote  v.  Duke,  Estate  for  Years 

Northumberland's   (E.)   case,    Heir- 
looms 

Northwick  (Ld.)  v.  Stanton  or  Stan- 
v,ay,  Common 

,  Copyholds 

Norton  v.  Fricker,  Life  Estate 

V.  Ladd,  Fee  Simple 

V.  Turvil,  Trusts 

Norway  v.  Norway,  Trusts 

Nottingham  v.  Jennings,  Estate  Tail 

(^ley.)  V.  Lambert,  Wa- 
ters 

V.  Swan,  Fran- 
chises 

Nourse  v.  Finch,  Trusts 

Nowlan  v.  Nelligan,  Trusts 

Noys  V.  Mordaunt,  Mortgage 

Nonn  v.  Lufifkin,  Copyholds 

Oakapple  v,  Copous,  Tenancy  from 

Year  to  Year 
Oakley  v.  Adamson,  Right  of  Way 
Gates  v.  Cooke,  Trusts 

v.  Frith,  Rent 

V.  Jackson,  Joint  Tenancy 

O'Brian  v.  Knivan,  Estate  for  Years 
O'Brien  v.  Grierson,  Rent 
OJeham  v.  Smith,  Copyliolds 

Ogle  V.  Cook,  Land  and  Money 

,  Trusts 

Ognell's  case,  Rent 
Oke  V.  Heath,  Powers 
Okeden  v.  Okeden,  Powers 
O'Keefe  v.  Calthorpe,  Trusts 
Oland's  case,  Life  Estate 

,  Estate  at  Will 

Oldcot  V.  Levell,  Copyholds 

,  Custom  a  rv  Estates 

Oldfield's  case,  Right  of  Way 
Oldham  v.  Hughes,  Land  and  ZMoney 

V.  Pickering,  Life  Estate 

V.  Litchford,  Trusts 

Oldknow  V.  Wainwright,  Francliises 
Olive  V.  Ingram,  OiEces 

Oliver  v.  Court,  Trusts 

V.  Richardson,  Dower 

V.  Taylor,    Customary    Free- 

holds 
Ommany  v.  Butcher,  Trusts 
O'Neal  f.  Mead,  Assets 
Onlcy  V.  Gardener,  Right  of  Way 
Onslow  V.  Corrie,  Estate  for  Years 

,  Trusts 

Opie  V.  Thomasius,  Estate  Tail 


§  278]Ord  v.  White,  3Iortgage 

858  Ordeway  v.  Orme,  Common 
1787o]Orland's  case.  Estate  at  Will 

&6,Ormond    (Marquis)   t.    Kynersley, 
9371     Trusts 

j  Osborn  and  Jay,  Estate  for  Years 
676,Osbom  or  Osborne  v.  Garden,  Copy- 
holds 

6=6' V.  Wise,  Right  of  Way 

loOl  Osborne's  case,  Estate  for  Years 
Osborne  v.  Lea,  ^Mortgage 
16  Otred  V.  Round,  Dower 
Osbrey  v.  Bury,  Powers 
315  Osburne  or  Osborne  v.  Stnre,  Copy- 
792 1  holds 

10.56, V.  Wise.  Estate 

961 1  for  Years 

1729  lOsbuston  v.  James,  Franchises 
1845  [Osgood  V.  Strode,  Trusts 
982,Otway  v.  Hudson,  Land  and  Money 

,   Dower 

109, ,  Customary    Es- 

'  tates, 

6S6  ,Ould  V.  Conoye,  Common 
1769  Outhwaite  v.  Outhwaite,  Dower 
1771  Oveton  v.  Banister,  Trusts 

11   Owen  V.  Ap.  Rees,  Estate  for  Years 

876  V.  Foulks,  Trusts, 

V.  Stainol,  Advowsons 

,  Franchises 


15";2  Owen's  case,  Ancient  Demesne 

361  Oxenden  v.  Compton,  (Lord)  Land  and 
1832       Money 
151  Oxford  'Mav.)  v.  Richardson,  Waters 

2304 , ,  Right  to 

1340  i  Water 

176 [Oxford  (Queen's  Coll.  Hallett 

or  Oson's  (Bp.)  case.  Estate  for 

Years 

,  Trusts 

,  Powers 


§  2242 

275 

1551 

1803 
1355 

819 
366 
13C^3 
2248 
1156 
2063 

804 

1279 

684 

1813 

63 

1174 

2266 

318 

1209 

1-S7 

1339 

1945 

121 

718 

938 


806 

72 

1794 

223 
2034 
2086 
1827 
1048 
1551  iPackington's  case,  Life  Estate 

874  Paddy  v.  !Madden,  Fee  Simple 
2357  Page  v.  Broom,  Trusts 

373  V.  3Ioulton,  Uses 

67  i  Paget  v.  Foley,  Rent 

10541 V.  Gee,'Rent 

1768  Paget's  (Ld.)  case.  Uses 


Oxford's  (Ld.)  case,  Copyholds 

Packer  v.  Gibbins,  Rent 

T.  Walsted,  Right  of  Way 


Orby  V.  Mohun,  Rent 

Estate  for  Years 


Ord  V.  Smith,  Mortgage 
OCTOBEK,  184B.— D 


718 
557 

1869 
1208 

921 

1777a 

46 

3=1 
1400 
1881 

999 

176 
1373 
2270 


Pain  V.  Patrick,  Right  to  Water 
Paine  v.  ]\Ieller,  Trusts 
Paine's  case,  Estate  Tail 

,  Curtesy 

,  Estate  for  Years 


Pale  v.  ^Mitchell,  Trusts 
Palfrey  v.  Baker,  Rent 
Palliser  v.  Ord,  Powers 
Palmer  v.  Barfoot,  Franchises 

v.  Bate,  Otliccs 

V.  Butler,  Franchises 

V.  Danby,  Mortgage 

V.  Edwards,  Estate  for  Years 

V.  netcher,  Right  to  Light 


73 
108 

409 
349 

1336 

18?6 

1965 

620 

257 

373 

1041 

960 

1778 

1614 

243 

220 

1631 

409 

1761 

971 

1087 

1325 

1719 

196 

1964 

646 

537 

727 

2266 

1388 


&c. 


450.  465 


TABLE     OF     CASES. 


Palmer  v.  Hamilton,  Estate  for  Years 

§  1293.  152G 

V.  Richards,  Fee  Simple 

V.  Wheeler,  Powers 

. V.  Young-,  Estate  for  Years 

,  Trusts 


Palmer's  case,  Common 

Palmes  or  Palms  v.  Danby,  Dower 

Panel  v.  Moor,  Title 

Papillon  V.  Voice,  Estate  Tail 

,  Trusts  1770 


for 


Paradine  v.  Jane,  Rent 
Paramour  v.  Yardley,  Estate 

Years 
Partridge  v.  Pawlet,  Trusts 
Partyn  v.  Roberts,  Trusts 
Parke  or  Paske  v.  Harris,  Rent-charge 
Parker  v.  Blake,  Customary  Estate 

V.  Brooke,  Estate  lor  Years 

,  Trusts 


9(50 

201 U./ 

1543 

1802 

325 
1163 
2375 
1014 
1808 

202 


V.  Cook,  (Copyholds 
V.  Downing-,  Dower 
V.  Gage,  Copyholds 
V.  Harvey,  Jointure 
V.  Kett,  Ortiees 
,  Powers 


Peachy  v.  Somerset  (D.),  Copyholds 
,  Title  by  Escheat 


Peacock  v.  Peacock,  Estate  at  Will 
Peakc  V.  Pcnlington,  Trusts 
Pearce  v.  Baron,  Trusts 
,  Powers 


V.  Mitchell,  Right  of  Way 

V.  Thacker,  Estate  Tail 

V.  Turnerj  Copyholds 

Parkes  v.  White,  Trusts 
Parkin  v.  Redeliffe,  Copyholds 
Parkinson's  case.  Franchises 
Parmenter  v.  Webber,  Rent 
Parrott  v.  Sweetland,  Mortgage 
Parry  v.  Gibbs,  Tithes 

V.  Harbcrt,  Estate  for  Years 

Parsons  v.  Baker,  Trusts 

V.  Freeman,  Assets 

V.  Thom]>son,  Offices 

Parthcriche  v.  Mason,  Waters 
Parton  v.  Mason,  Copyholds 
Partridge  v.  Berc,  Fixtures 

■         V.  Scott,  Easements, 

Paston  V.  Mann,  Copyliolds 

.        — V.  Utbert,  Common 
Pastriche  v.  Powlct,  Joint  Tenancy 
Paton  V.  Brebncr,  Right  to  Water 
Patrick  v.  Balls,  Franchises 

■  —  V.  Lowre,  Common 
Paul  V.  Compton,  Trusts 

V.  Nurse,  Rent 

Paulet's  case,  Escheat 

Paulett,  Pawlet,  or  Pawlett  v.  Att.- 
Gen.,  Mortgage 

_^__ ,  Uses 

-,  Trusts 


—  V 

—  V, 


Compton,  Trusts 
Drewc,  Estate  for 
Years 

V.  Pawlet,  Powers 

Paulter  v.  Cornhill,  Copyholds 

Pawsey  v.  Lowdall,  Uses 

Payne  v.  Rogers,  Trusts 

V.  Shedden,  Right  of  Way 

Paynell's  case,  Dower 

Peaceable  v.  Read,  Tenancy  in  Com- 
mon 


1395 

1783 

1830 

151 

23b3 

1534 

1749 

881 

1200 

806 

1230 

566 

1964 

381 

979 

SJ9 

1752 

816 

724 

223 

2207^/ 

136 

1.508 

1771 

48 

574 

108 

811 

24 

502 

821 

322 

2314 

417 

705 

271.278 

1771 

205 

2416 

11 

1608 
1822 
1821 


V.  Chcslyn,  Estate  for  Years 

Pcarh'  V.  Smith,  Rent 
Pearson  v.  Pearson,  Dower  1195. 

Pease  v.  Badtitle,  Ancient  Demesne 
Peat  V.  Powell,  Fee  Simple 
Peers  v.  Lucy,  Right  to  Water 
Pelham  (Ld.)  v.  Gregory,  Estate  for 
Years 

V.  Pickersgill,  Ways 

V.  Wiatt,  Ways 

,  Franchises 

Pell  V.  Tower,  Franchises,  631. 


Pellatt  V.  Ferrars,  Tithes 
Pells  V.  Brown,  Estate  Tail 
— ,  Uses 


Pembroke  v.  Baden,  Land  and  Money 

V.  Berkeley,  Offices 

Pembroke's  (E.)  case.  Common 
Per.n  v.  Baltimore,  Trusts 

V.  JMerivall,  Copyholds 

V.  Peacock,  Powers  19 63. 

Pennant's  case.  Estate  for  Years  1351 

,  Estates  on  Condition 

Pennington  v.  Morse,  Estate  at  Suf. 

ferance 
Pennyfather,  In  re,  Powers 
Penruddock's  case,  Riffht  to  Water 
Penrhyn  v.  Hughes,  Mortgage 
Pense  or  Pierce  v.  Prowse,  Churches 
Pentland  v.  Stokes,  Trusts 
Pentonv.  Robart,  Fixtures 
Pep|)in  V.  Shakspear,  Copyholds 
Perkins  or  Perkyns  v,  Bayntura,  As- 

sets 


§  878 
2416 
1547 
1819 
1819 
1906a 
12S4 
320 
1199 
936 
961 
409 

1419 
102 
102 
631 
1653 
1355 
981 
1699 
63 
580 
299 
1822 
888 
2019 
1513 
2197 


1.598 

2111 

442 

2244 

90 

1933 

22 

860 

49 
.  Titus,  Copyholds  788 


Pcrrin  v.  Blake,  Estate  Tail 

V.  Brook,  Estate  for  Years 

Perrot's  case,  Uses 

Perry  v.  Allen,  Estate  for  Years 

V.  Phelps,  Uses 

Perth  V.  Shephard,  Estates  on  Con- 
dition 
Peter  v.  Kendal,  Waters 
Peters  V.  Masham,  Powers 
Pctfield  V.  Pierce,  Uses 
Petre  (Ld.)  v.  Blencoe,  Tithes 
V.  Jointure 


1170 
2044 

837 
1699 
1866 

381 
1189 

2317 


Pettman  v.  Bridger,  Churches 

,  Right  to  Pews 


Petty  V.  Evans,  Copyholds 
1 ,  Estate  for  Years 


V.  Styward,  Trusts 

Joint-tenancy 


987 
1290 
1636 
1496 
1661 

2152 

108 

1996 

1638 

137 

1248 

90 

488 

905 

1403 

1783 

2307 

504 

1996 


Peyton  v.  London  (May.)  Easements 
Phelp  or  Phelps  v.  Hay,  Powers 

V.  Wincheombe  or 

Winseombc,  Offices  563 
Philips  or  Phillips  v.  Brvdgcs,  Trusts    1719 

V.  Bucks  (D.),  Land 

and  Money  62 
V.  Bury,  Franchises    721 


TABLE    OF    CASES. 


li 


Philips  or  Phillips  Ex  parte,  Land  and 
Money  § 


V. 


Trusts 
Hartley,  Estate 
for  Years 

—  V.  Manning,  Trusts 

—  V.  Paget,  Trusts 

—  V.  Phillips,  Assets 
,  Trusts 


Philpot  V.  Hoare,  Rent 

— ,  Estate  for  Years 

Phipps  V.  Anglesca  (E.),  Heir 

V.  Annesley.  Assets 

V.  Kelynge,  Trusts 

Phipson  V.  Sculthorpc,  Rent, 

V.  Turner,  Powers 

Physicians  (Coll.  and  Butler)  v.  Sal. 

men.  Franchises 
Pibus  V,  Mitford,  Uses  1644. 

Pickering  v.  Kempton,  Commons 

V.  Pickering,  Trusts 

V.  Rudd,  Trespass 

V,  Towers,  Estate  Tail 

V.  Vowles,  Estate  for  Years 

,  Trusts 

Pierce  v.  Fauconbeg,  Waters 

.  ,  Right  of  Way 

Piers  V.  Hoc,  Life  Estate 
Pierson  v.  Garnet,  Trusts 

V.  Ridge,  Franchises 

V.  Shore,  Land  and  Money 

V.  Vickers,  Estate  Tail        980, 

Pigot  or  Piggot  V.  Birtles,  Rent 

V.  Garnish,  Estate  for 

Years 

V.  Hearn,  Titlics 

V.  Palmer,  Jointure 

V.  Penrice,  Powers 


78 
1762 

1290 

1729 

1887 

46 

1792 

205 

1455 

82 

49 

1716 

257 

1985 

701 

1688 

95 

1885 

2458 

982 
1534 
1839 

107 

373 
1062 
1775 

654 
78 

986 

238 

1393 
136 
1261 
2041 
1778 
194 
1449 
V.  Shallcr,  Estate  for  Years  1386 
Pilkington's  case.  Offices  585 

Pindar  v.  Ainsley,  Rent  202 

Piner  v.  Judson,  Estate  for  Years  1284 

Pinket  and  Wright,  Trusts  1934 

Pinnel  v.  Hallet,  Jointure  1232. 1240 

Piper  V.  Piper,  Powers  2065 

Pit  or  Pitts  V.  Ciiick,  Copyholds  858 

V.  Hunt,  Trusts  1710 

V.  Jackson,  Powers  2047 

V.  Pelliam,  Trusts  1761« 

,  Powers  1978 

50 


Plcydell  or  Plcadel  v.  Gosmore,  Fran- 
chises 
Plim[)ton  V.  Dobincf,  Copyholds 
Plowdcn  V.  Oldford,  Estate  for  Years 
Pluncknet  v.  Kirk,  Mortgage 
Plummer  v.  Whitchcolt,  OtEces 
Plunkct  V.   Holmes,  Curtesy 
,  Merger 


Plunkct  V. 


Penson,  Assets 

,  Trusts 

Mortgage 


Plymouth  (E.)  v.  Hickman,  Trusts 
Pocklcy  V.  Pockley,  Assets 

Mortgage 


1774, 


Pocock  V.  Reddington,  Trusts 
Rodger's  case.  Copyholds 
Podmore  v.  Gmming,  Trusts 
Pollexfen  V.  iMoorc,  Mortgage 
Policy  V.  Seymour,  Land  and  Money 
Pomcry   v.    Partington,    Estate    for 

Years 
Pomfrct  V.  Ricroft, Life  Estate 


§665 

820 

1343 

2264 

569 

1101 

2452 

43 

1724 

2264 

1785 

42 

227  6« 

1878 

843 

1768 

2207a 

69 


1045 


V.  Windsor,  Estate  for  Years  1480 


Pont  V.  Pont,  Ancient    Demesne 
Poole  V.  Bentley,  Estate  for  Years 

V.  Pass,  Trusts 

V.  Poole,  Estate  Tail 

•. ,  Trusts 

Poole's  case,  Fixtures 
Poordage's  case,  Franchises 
Pope  V.  Davis,  Rent 

V.  Pope,  Trusts 

Popham  V.  Bampfield,  Trusts 
,  Estates  on  Con- 
dition 
Porter  v.  Bradley,  Estate  Tail 
,   Uses 


Pilkington  v.  Bayley,  Trusts 

V.  Dalton,  Rent 

V.  Peach,  Estate  for  Years 


Porter's  case.  Estates  on  Condition 
Portington's  case.  Uses 

,  Trusts 

,  Powers 


Portlock  V 
Portmore 
Water 


,  Gardiner,  Trusts 
(E.;   V.    Bunn,   Right 


to 


V.  Raymond,  Assets 

V.  Smith,  Estate  for  Years  1414 


Snowden,  Rent 
,  Dower 


Pitts  V.  Gainer,  Franchises 
Place  V.  Flagg,  Fixtures 
Plant  V.  James,  Right  of  Way 
Piatt  V.  Piatt,  Estate  for  Years 

V.  Sprigg,  Trusts 

Player  v.  Roberts,  Copyholds 
Playne's  case.  Rent 
Pleasant  v,  Benson,    Tenancy 
Year  to  Year 


from 


225 
1198 

711 
24 

385 
1485 
1913 

854 

204 

1592 


Portsmouth  (Ld.)  v.  Effingham  (Lady,) 

Jointure 
Postman  v.  Harrell,  Rent 
Potter  V.  North,  Common 
Poulteney    v.    Holmes,    Estate    for 

Years 
Povy's  case.  Assets 
Powcl  V.  Powel,  Heir 
,  Estate  Tail 


938 
1283 
1899 

983 

1714 

22 

650 

248 
1774 
1830 

2160 

981 
1613 
2165 
1667 
1768 
1972 
1854 

417 

1248 
244 
314 


Powell  V.  Bull,  Tithes 

V.  Killick,  Rent 

V.  Londall,  Powers 

Powell  V.  Powis,  Copyholds 

V.  Price,  Trusts 

V.  Weeks,  Dower 

Powis  V.  Corbett,  Assets 
V.  Smyth,  Rent 


1388 

51 

81 

1007 

134 

230 

2037 

917 

1801,  1810 

1190 

50 

228 


1984. 


Pleazance  v.  Higliam,  Estate  for  Years  1285 


Powsly  and  Blackman's  case,  or  Pow- 
sely  V.  Blackman,  Estate  at  Will 

Mortgage 


Prat  V.  Steam,  Franchises 
Prebblc  v.  Boghurst,  Jointure 
Prcdyman  v.  AVodry,  Franchise 


1545 
2213 

704 
1244 

704 


m 


TABLE    OF    CASES. 


Preece  v.  Corrie,  Rent 
Prescott  V.  Boucher,  Rent 
Presg-rave  v.  Shrewsbury   (Church,) 

Right  to  Pews 
Preston  v.  Mercer,  Right  to  Water 

V,  Waccy,  Dower  1186 

Pretty  v.  Butler,  Common  277 

Prevost  V.  Clarke,  Trusts  1771 

Price  V.  Carver,  Mortgage  2283 

V.  Dyer,  Estate  for  Years  1308 

V.  Perrie,  Mortgage 

V.  Simpson,  Estate  for  Years 

Prichard  v.  Ames,  Trusts 
Pricket,  Ex  parte,  Estate  for  Years 
Priddle  and  Napper's  case,  Tithes 
Pride  v.  Bath  (E.,)  Descent 
Priestling  v.  Hughes,  Dower 
Prigg's  case.  Franchises 
Prince  v.  Lewis,  Franchises 

V.  Moulton,  Riglit  to  Water 

Prince's  (the;  case,  Dignities 

—. ,  Fee  Simple 

. ,  Estate  for  Life 

Pring  V.  Pring,  Trusts 

Pringle  v.  Wernham,  Riglit  to  Light, 

&.C. 

Probert  v.  Morgan,  Jointure 
Prodger's  case.  Copyholds 
Proud  V.  Hollis,  Right  of  Way 
Prouse's  case.  Franchises 
Prowse  V.  Abingdon,  Assets 

,  Trusts 

Pruett  V.  Drake,  Common 

Leeds   (Duke,)    Estate    for 
Years 

V.  Ryall,  Estate  for  Years 

Puleston  V.  Puleston,  Trusts 
Pullen  V.  Palmer,  Rent 

,  Joint-Tenancy 

Pultcncy  V,   Darlington,    Land   and 

Money 
,  Trusts 


§223  Railey  v.  Best,  Common 
230  Randal  v.  Riccardson,  Land 
Roberts,  Tenures 


§  95 

85 

755 

483  Randall  v.  Bookey,  Land  and  Money         72 

418  i V.  Errington,  Trusts       1787a,  1945 


V.  Jenkins,  Tenures 
■  V.  Randall,  Land  and  Money 


Trusts 


V.  Tuchin,  Fee  Simple 
V.  Willis,  Jointure 


2202  Rashley  v.  Masters,  Land  and  Money 
1396JRastal  v.  Turner,  Copyholds 
]  749  [RatcIifFv.  Grave,  Assets 
1413  Ratcliffe's  case,  Descent 

137 1  Rattle  v.  Popham,  Estate  for  Years 
2392|Ravenhill  V.  Dansey,  Powers 
1123iRavensliaw  v.  Hollicr,  Trusts 

Rawe  v.  Chichester,  Estate  for  Years 
Rawlinson  v.  Green,  Customary  Es- 
tates 

,  Montague,  Life  Estate 

Rawson  v.  Eycke,  Estate  for  Years 
Ray  V.  Pung,  Powers 
~  ~  V.  Allen,  Copyholds 

V.  Brookman,  Estate 
for  Years 


648 

692 

418 

605 

968 
1396; 
1769  Read  or  Rcade 


Pugh 


463 

1230 

78o 

363 

650 

42 

1725 

308 

1301 

1454 

1766 

227 

2308fl 


Warren,  Dower 
-,  Trusts 


Pulvertoft  V.  Pulvcrtofl,  Trusts 
Purbeck's  (Ld.)  case,  Dignities 

,   Estate  Tail 

Pur  eel  v.  Purcel,  Powers 

Purefoy  v.  Rogers,  Merger, 

Pusey  v.  Desbouveric,  Dower 

Pushman  v.  Filliter,  Trusts 

Pultenham's  case,  Rent 

Pybus,     See  Pibus 

Pye  V.  George,  Trusts  1800, 

Pyne  v.  Dor,  (1  T.  R.  55),  Life  Estate 

Quarlcs  v.  Capell,  Assets 
Qarrell  v.  Bcckford,  Mortgage 
Queen  (The)   and  Littleton's    case, 
Estate  for  Years 


61 
1759 
1207 
1948 
1779.  1806 
608 
993 
2084 
2452 
1200 
1771 
167 


1913 
1040 

45 

2230 

1495 


Rabbet  v.  Raikes,  Timber 
Rackham  v.  Jessup  or  Jesup, 

mon 
Radford  v.  Young,  Estate  for  Years 
Radnor  (Lady)  v.  Rotherham,  Dower 
Raikes  v.  Towsend,  Right  to  Water         430 


26 
Com- 

325.  359 
1432 

1207 


Read 


V.  Erington,  Uses 

V.  Hatton,  Fee  Simple 

v.  Lawrence,  Rent 

V.  Nash,  Estate  for  Years 

,  Powers 


V.  Reade,  Trusts 
V.  Sncll,  Estate  Tail 
,  Trusts 


V.  Sparkes,  Trusts 


Reading  v.  Rawsterne,  Title 
V.  Royston,  Tenancy  in  Com- 
mon 
Workworth,  Franchises 


Reay  v.  Huntington,  Tenures 
,  Customary  Free- 
holds 
Redington  v.  Redington,  Estate  Tail 
,  Trusts 


Redpath  v.  Roberts,  Rent 
Reech  v.  Kennigall,  Trusts 
Rees,  Ex  parte.  Franchises 

V.  Dacre,  Estate  for  Years 

V.  Phillip  or  Pliillips,  Rent 

,  Estate  for 

Years 


752 

78 

1802 

958 

1241 

61 

882 

40 

2396 

1369 

2085 

1779 

1534 

2355 
1053 

1289 
2054 

885 

1275 
1641 

960 

214 

1363 

1966 
1948 
981 
1808 
1901 
2380 

2317 
695 
735 

921 
1009 

1784 
205 

1768 
727 

1527 
214 


1373 

2411 

111 

1984 
207 
2060 
Remnant  v.  Bremridge,  Rent  207.  258 

Ren  V.  Bulkeley,  Estate  for  Years  1380 

Rcnnell  v.  Lincoln  (Bp.),  Next  Pre- 
sentation 910 
Rennie  v.  Robinson,  Estate  for  Years  1425 
Renninglon's  case,  Dower                        1120 


Reeve  v.  Att.-Gen.,  Title  by  Escheat 

V.  Digby,  Waters 

Reid  V.  Shergold,  Powers 

v.  Tenterden  (Ld.),  Rent 

Reith  V.  Seymour,  Powers  1966. 


Repington  v.  Tamworth  School,  Next 
Presentation 

Repington  v.  Tamworth  School,  Ad- 
vow  sons 

Rercsby  v.  Farrer,  Commons 


9 

131 
95 


TABLE     OF     CASES. 


llll 


Rcre 
Rcve 
Rcvc 

R.  V. 

-  V. 

V. 

V. 

V. 

■ —  V. 

V. 

V. 

V. 

V. 

V. 

V. 


by  V.  Newland,  Powers 
V.  I\l;ilster,  Tenures 
11  V.  Joddrcll,  Common 

,  Copyholds 


Abcravon,  Common 
Adlard,  Fraiicliises 
Aire  and  Caldcr  Navigation  Co., 

Waters 
Aldborough,  Estate  for  Years 
Allesbury,  Mines 
AUgood,  Copyholds 
All  Souls  (Coll.),  Franchises 
Alsop,  Franchises 
Atkins,  Franchises 
Bagshaw,  Right  of  Way 
Bath  (Corp.),  Interest  in  Land 
Bellringer,  Franchises 
Bernard,  Franchises 
Bettsworth,  Franchises 
,  Ancient  Demesne 


§  208.'5 
749 
340 
1708 
310 
649 


647 


V.  Bingham,  Offices 
V.  Bland,  Franchises 
V.  Bliss,  Right  to  Light,  &c. 
V.  Blythe,  Franchises 
V.  Boldero,  Tithes 
V.  Bonsai  (Ld.  Man.),  Copyholds 
V.  Boscawen,  Franchises 
•  V.  Boston,  Ways 
V.  Bougton  (Lady")  See  Broughton 

■  V.  Boughey,  Copyholds 
V.  Brewers'  C/ompany,  Copyholds 
V.  Brighton  Gas  Co.,  Interest  in 

Land 
V.   Bristol    Dock    Co.,   Right    to 

Water 
V.  Broughton  or  Boughton,  Officers 

569 
V.  Brown,  Mines 

■  V.  Buccleugh  (Duch.),  Manors 

■  V.  Buckcridge,  Ways 
V.  Burdct,  Waters 
V.  Burrel,  Offices 
V.  Butler,  Franchises 
V.  Cant.  (Archbp.),  Advowsons 
V.  Cardington,  Interest  in  Land 

■  V.  Carlisle  (May.),  Franchises 
V.  Carter,  Franchises 
V.  Catherine  Hall  (Master,)  Fran- 
chises 

V.  Catherington,  Mortgage 
V.  Chalk,  Franchises 
V.  Chester  (Bp.),  Advowsons 
,  Franchises 


722 


•  V.  Chipping  Norton  (Inh.),  Fran- 

chises 
V.  Churchill,  Common 
V.  Cluworth,  Right  of  Way 
V.  Goggan,  Copyholds 
.  V.  Collett,  Estate  at  Will 

•  V.  Cotterell,  Franchises 

•  V.  Courtenay,  Franchises 
V.  Croke,  Franchises 

V.  Crundcn,  Waters 
■  V.  Daceombc,  Trusts 

•  V.  Darbyshire,  Franchises 
-  V.  Davis,  Houses 
,  Franchises 


110 
1390 
101 
910 
722 
724 
715 
390 
83 
715 
648 
642 
927 
597 
725 
454 
715 
134 
908 
718 
102 

909 
908 

83 

432 

582 
101 

88 
102 
199 
531 
679 
121 

83 
706 
706 

721 
2241 
717 
113 
724 

705 
310 
372 

908 

1547 

694 

699 

699 

107 

1728 

650 

8J 

648 


R. 


Dccaux,Rent  §  200 

Dersingham,  Common  310 

Dickenson,  Franchises  654 

Doncaster   (May.),   Franchises 

701.717 


Durham,  Manors 

Franchises 


Eastbourne,  Estate  for  Years 
Ecclcsficld  (lull.),  Ways 

-,  Franchises 


Ellis,  Waters 

,  Tithes 

,  Franchises 


Ellison,  Houses 
Ely,  Franchises 
Essex  (Com.  Sew.),  Waters 
Evans,  Offices 
Eyre,  Interest  in  Land 
Estate  for  Years 


-  V. 

-  V. 

V. 

V. 

V. 

V. 

V. 

V. 

V. 


Flceknow,  Waj's 
Gardiner,  Franchises 
Genge,  Franchises 
Gilbert,  Francliises 
Goudgc,  Franchises 
Great  Farringdon  (Inh.),  Cur 
,  tesy 

Grew,  Franchises 
Grimes,  Franchises 
Hadlow,  Ancient  Demesne 
Hammond,  Waj's 
Harrison,  Franchises 
Harrow  (Inh.),  Easements 
Hastings,  Franchises 
Hatfiold,  Way 

,  Right  of  Way 

Havering-atte-Bower,      Fran- 


88 
722 
1443 
102 
712 
108 
134 
715 

89 
723 
113 
585 

83 
1465 
103 
711 
649 
646 
648 

1079 
677 
714 
932 
102 
647 
512 
631 
102 
390 


chises 
Hawkins,  Franchises 
Hedges,  Fixtures 
Ilendon,  Copyholds 
Hermitage,  Common 
Hilliardsden,  Ways 
Hodgson,  Estate  lor  Years 
Hodnett  (Inh.),  Dower 
Holland,  Copj'holds 
Uses 


Hornsey,  Ways 
Hudson,  Prescription 
Ipswich  (Bailiffs,  &c.), 

Jennings,  Franchises 
Jobling,  Estnte  at  Will 
Jolliffe,  Franchises 
Kemp,  Offices 

-,  Remainders 


631 
718 
23 
782 
346 
102 

1392 

1123 
831.  861 

1609 
102 

2421 
Offices 

578.  715 
647 

1547 
647 
553 

2327 
134 
648 
731 


Kimbolton,  Tithes 
King,  Francliises 
Kingsmill,  Francliises 
Knollys  or  Knowles,  Dignities 

602.  618 
Larwood,  Franchises 
liairdon  (Inh.),  Uses 
Lcnthall,  Offices 
Limehouse,  Ways 
Lincoln  (Bp.),  Advowsons 
Franchises 


V.  Liverpool  (May.),  Francliises 


718 
1636 
563.  567 
102 
122 
724 
717 


liv 


TABLE    OF     CASES. 


Offi. 


R,  V.  Lloyd,  Ways 

—  V.  Lucas,  Copyholds 

—  V.  Machynlleth,  Ways 

—  V.  Manlove,  Offices 

—  V.  Marches  (President,  &c.). 

cers 

—  V.  Marsden,  Franchises 

—  V.  Medhurst  (Bor.),  Copyholds 

—  V.  Mein,  Offices 

—  V.  Mersey  &c.  Nav.  Co.,  Waters 

—  V.  Miller,  Franchises 

—  V.  Milton,  Waters 

—  V.  Monday,  Franchises 

—  V.  Morgan,  Franchises 

—  V.  Morris,  Franchises 

—  V.  Newsham,  Franchises 

—  V.  Northumberland,  (E.)  Mines 

—  V.  Airesford,  Waters 

—  V.  Otlcy,  Fixtures 
,  Mills 


102,  103 

9 

102 

582 


679 


V.  Parrott,  Houses 
V.  Parry,  Franchises 

■  V.  Pattison,  Offices 

•  V.  Pcrgam,  Offices 

■  V.  Pilkinffton,  Franchises 

•  V.  Pitt,  Mines 

•  V.  Pohnan,  Offices 

■  V.  Portington,  (Lady)  Trusts 

■  V.  Rennett,  Copyholds 

•  V.  Richardson,  Franchises  701 
-  V.  Rigge,  Copyholds 

■  V.  Rippon,  Franchises 

■  V.  Rolfe,  Francliises 

■  V.  Rooks,  Offices 

•  V.  Rochdale  Wat.  W.  Co,  Interest 

in  Land 

•  V.  Roupell,  Francliises 

•  V.  St.  Benedict,  Ways 

■  V.  St.  Giles',  Wavs 

■  V.  St.  JoJin's,  (Coll.)  Franchises 

•  V.  Saintiff,  Ways 

•  V.  Scanrinionden,Uscs 

■  V.  Severn  Rail.  Co.,  Wavs 
Riglit  of  Way 


Sheffield,  Waj-s 
Slicllcy,  Copyholds 
Slicplicrd,  Offices 
Shrewsbury,  Franchises 
Skinner,  Ways 
Smith,  Trusts 
Snowdcn,  Estate  for  Years 
Stafford,  (M.)  Copyholds 
Stanton,  Franchises 
Staverton,  Copyliolds 
Stevens,  Franchises 
Stone,  Estate  for  Years 
Stoughton,  Ways 
Strafford,  Advowsons 
Strangeways,  Franchises 
Stubbs,  Offices 
Sutton,  Francliises 
Tewksbury,  Commons 
,  Common 


67G, 


Theodorick,  Franchises 
Thorncborough,  Advowsons 
Tippet,  Right  of  Way 
Topping,  Estate  for  Years 


569 

,695 

908 

597 

109 

714 

109 

714 

630 

714 

714 

99 

11 

22 

93 

89 

718 

589 

560 

713 

98 

588 

1768 

908 

.716 

910 

713 

677 

578 

83 
646 
103 
102 
722 
102 

1635 
192 
398 
102 
910 
597 
716 
102 

1748 

1465 
908 
631 
833 
648 

1306 
102 
121 
716 
557 

.715 
94 
310 
716 
121 
383 

1511 


R.  V.  Tower,  Copyholds 

—  V.  Trafford,  Right  to  Water 
-  V.  Trent  Nav.  Co.,  Interest  in  Land 

—  V.  Trinity  House,  Waters 

—  V.  Trucbody,  Franchises 

—  V.  Turner,  Houses 
,  Tithes 


V.  Varlo,  Franchises 
V.  Vaughan,  Offices 
V.  Wardc,  Ways 
V.  Warkwortli,  (Inh.)  Common 
V.  Water-Eaton,  Copyholds 
V.  Watson,  Commons 
,  Common 


§910 

420 

83 

105 

717 

89 

134 

714 

588 

103 

296 

908 

94 

310 

578 

101 

677 

431 

2461 

1975 

94 

873.  908 

2.307 

2474 

908 

—  V.  Windliam,  Franchises  722 

—  V.  Wistow,  Tithes  134 

—  V.  Worcester,  Franchises  725 

—  V.  Wright,  Sewers  113,354 

—  V.  Wyatt,  Franchises  648 

—  V.  Wyndham,  Franchises  711 

—  V.  Wyvil,  Common  354 

—  V.  Yarborough,  Waters  105 

—  V.  Yarton,  Ways  102 

—  V.  York,  (Archbp.)  Advowsons  113 

—  V.  Yorksliire,  (W.  R.  Just.)  Right 

of  Way  389 

Reynel's  case,  Offices  532 

,  Dignities  610 

Reynel's  case.  Estate  for  Years  1464 

Reyncll  v.  Cliampcrnoon,  Common  359 

1662 


—  V.  Wells,  (Corp.)  Offices 

—  V.  Woodland,  Mines 

—  V.  Wheeler,  Franchises 

—  V.  Wharton,  Right  to  Water 

—  V.  Wliite,  Nuisance 

—  v.  Whitaker,  Powers 

—  v.  Whixlcy,  Commons 

—  V.  Willcs,  Copyliolds 

—  V.  Williams,  Joint-tenancy 

—  V.  Wilson,  Entry 
,  Copyholds 


V.  Long,  Uses 


Reynolds  or  Reignolds  v.  Buckle,  Rent   204 

V.  Clerk  or  Clarke,  Right  to 

Water  418.  433 

375 

1717 

899 

1969 

351 

875 

1775 

1246 

258 

958 


I V.  Edwards,  Right  of  Way 

iRice  V.  Langford,  Trusts 
Rich  V.  Barker,  Copyholds 

V.  Beaumont,  Powers 

Richards  v.  Noble,  Common 

V.  Seley,  Copyholds 

Richardson  v.  Chapman,  Trusts 

V.  Elphinstone,  Jointure 

V.  Hall,  Rent 

V.  Hood,  Fee  Simple 

V.  Kenset,  Customary  Es- 
tates 
V.  Langridge,  Estate  at  Will 


V.  Sydenham,  Estate   for 

Years 
Richmond  and  Butcher's  case.  Rent 
Riddel  v.  Jenncr,  Customary  Estates 
Rider  v.  Smith,  Right  of  Way 

V.  Wager,  Assets 

Ridges  v.  Morrison,  Assets 

Ridley  v.  Pownell  or  Founell,  Offices 


2358 

154G 

]293 

164 

2365 

378 

45 

58 

543 


TABLE     OF     CASES. 


Iv 


Ridout  V.  Pain,  Fee  Simple 
Rigden  v.  Vallicr,  Uses 
,  Trusts 


§    9G] 
1660 
1633.  1812 
Right  V.  Cuthell,  Estate  for  Years  1521 

,  Tenancy  from  Year 

to  Year 
-,  Joint-tenancy 


V.  Darby,  Estate  for  Years 

,  Tenancy  from  Year 

to  Year 

V.  Proctor,  Estate  for  Years 

V.  Smith,  Uses 
,  Trusts 


1589 
2309 
1522 


V.  Tliomas,  Rent 

Ripley  v.  Waterworth,  Assets 


1570 
1287 
1629 
1829 
176 
33 


Land  and  Money  69 


• ,  Life  Estate 

,  Trusts 

Risely  v.  Royle,  Estate  at  Will 
Ritch  V.  Sanders,  Tithes 
Rives  V.  Rives,  Life  Estate 
Rivet  V.  Dowe,  Copyholds 
Rivet's  case.  Copyholds 

,  Trusts 

Rivett  V.  Godson,  Rent 

Riviere  v.  Bower,  Right  to  Light,  &c. 

Roach  v.  Wadham,  Powers 

Roadley  v.  Dixon,  Dower 

Roberts  v.  Barker,  Estate  for  Years 

■ V.  Davy,  Mines 

v.  Dixwell,  Curtesy 

,  Powers 

,  Trusts 

• V.  Foster,  Ancient  Demesne 

— s V.  Jackson,  Rent 

V.  Carr,  Ways 

V.  Kingsley,  Right  of  Way 

■ ,  Trusts 


V.  Llo}'d,  Trusts 

V.  Macord,  Rigiit  to  Light, 

&c. 
V.  Smith,  Dower 
V.  Tunstall,  Trusts 


1051 

1794 

1546 

194 

1038 

776 

782 

1881 

152 

467 

2053 

1196 

1475 

99 

1107 

2048 

1806 

936 

238 

102 

368 

1810 

1197 

447 
1197 
1955 


Robertson  v.  St.  John,  Estate  for  Years 

1293 
1120 
2062 
34 
1809 
2010ffl 


Robins  v.  Crutchley,  Dower 
Robinson  v.  Dusgale,  Powers 

V.  Gee,  Assets 

V.  Hardcastlc,  Trusts 

,  Powers 


198.  227 


Roe  V.  Daw,  Fee  Simple 

—  V.  Doe,  Tenancy    from  Year   to 

Year 

—  V.  Dunt,  Fee  Simple 
,  Powers 

—  V.  Gallier,  Estate  for  Years 

—  V.  Grew,  Estate  Tail 

—  V.  Griffiths,  Copyliolds 

—  V.  Harrison,  Estate  for  Years 

—  V.  Hayley,  Estate  for  Years 

—  V.  Hutton,  Customary  Estates 

—  V.  Jefiery,  Estate  Tail 
,  Customary  Estates 

—  V.  Lccs,  Tenancy   from  Year  to 


,  Tonge,  Assets 
AdvQwsons 


I 


■  V.  Hoffman,  Rent 
-  V.  Nahon,  Estate  for  Years    1430 

■  V.  Pett,  Trusts  1906 
V.  Robinson,  Estate  Tail  983 

•  V.  Taylor,  Land  and  Money       72 

,  Trusts  1787fl 

33 
126 

2153 

2106 

1810 

849 

197 

266 
921 


V.  Wharroy,  Estates  oh.  Con- 
dition 
Roche,  In  re.  Powers 
Rochford  v.  Fitzmaurice,  Trusts 
Rockey  v.  Muggins,  Copyholds 
Rockinorham  (Ld.)  v.  Oxenden  or  Pen- 
rice,  Rent  13.  165.  195 
Rodham  v.  Berry,  Annuity 
Roe  V.  Briggs,  Customary  Freeholds 


Year 

—  V.  Mitten,  Trusts 

—  V.  Pierce,  Franchises 
,  Tenancy  from  Year  to 

Year 

—  V.  Popham,  Uses 

—  V.  Pridcaux,  Estate  for  Years 
,  Tenancy  from  Year 

to  Year 


§  960 

1577 

955 

2059a 

1455 

986 

907 

1507 

1521 

2371 

981 

2357 

1565 

1813 

704 

1585 
1642 
1368 


—  V. 


1569 
1840 
1509 
1549 
1395 
921 


Reade,  Trusts 
Sales,  Estate  for  Years 
Strcat,  Estate  at  Will 
Summerset,  Estate  for  Years 
Vernons  Customary  Freeholds 
W^ard,  Tenancy  from  Year  to 

Year  1580 

W^iggs,  Tenancy  from  Year  to 

Year  1592 

York,  (Archbp.)  Rent  175 

,  Estate  for  Years 

1391.1497 


Rogers  V.  Berkmire,  Rent 

V.  Brook,  Right  to  Pews 

V.  Jones,  ( "opyliolds 

V.  Marshall,  Copyholds 

V.  Pitcher,  Rent 

Entry 


V.  Reade,  Trusts 

V.  Rogers,  Trusts 

V.  Tranmer,  Uses 

V.  Vesey,  Trusts 

V.  Wynn,  Commons 

Roger's  case.  Copyholds 
Rolfc  V.  Biidder,  Trusts 
Rolfe  V,  Rolfc,  Right  to  Water 
Roll  V.  Osborn,  Assets 
,  Uses 


V.  Roll,  Heir 

Rome  V.  Young,  Assets 
Romilly  v.  James,  Estate  Tail 
Rook  V.  Worth,  Trusts 
Rookc  V.  Clcland,  Assets 

V.  Denny,  Franchises 

V.  Rooke,  Powers 

Roper  V.  Bunn'ord,  Rent 

V.  Lloyd,  Rent 

Roscarrick  v.  Barton,  Mortgage 
Rose  V.  Bartlett,  Land 

V.  Reynolds,  Jointure 

Rosewell.     See  Roswell. 
Ross  V.  Aldwick,  Remainders 

V.  Ross,  Estate  Tail 

,  Trusts 


245 

484 

910 

918 

198 

2474 

1935 

1792 

1077 

1883 

321 

861 

1749 

441 

33 

1663 

81 

54 

981 

1762 

35 

674 

2083 

19  G 

211 

2283 

86 

1225 

2329 
1007 
1760 


1 


VI 


TABLE    OF    CASES. 


Rosse's  case,  Life  Estate 
Kossiter  v.  Walsh,  Powers 
Roswell's  case,  Copyholds 
Ros 


-,  Right  to 


swell  or  Rosewell  v.  Prior,  Right  to 

Water  441 

Light, 
Slc.  466 

,  Nuisance  2464 

Rous  and  Artois'  case,  Copyholds  822 
— ,  Estate  at  Suffer- 
ance                  1597 
Rouse  V.  Rarker,  Commons  95 

,  Copyholds  915 

Routledge  v.  Dorrill,  Powers  2048 


§  1 020 1  Sadgrove  v.  Kirby,  Common 
2096  Sadler  v.  Hobbs,  Trusts 
913|Saffery  v.  Elgood,  Estate  for  Years 


Saffyn's  case,  Estate  for   Years 


Rowdcu  or  Royden  v.  Malster  or  Moul- 

ster.  Fee  Simple  953 

,  Uses,  1663 

,  Customary  Es- 
tates 2355 
Rowe  V.  Brenton,  Copyholds  855 

V.  Chichester,  Trusts  1802 

V.  Grenfel,  Mines  98 

V.  Power,  Mines  98 

,  Dower  1144 

V.  Shilson,  Ways  102 

V.  Wood,  Mortgage  2232 

Row  ell  V.  Walley,  Estate  for  Years        1440 
Rowlcs  and  Mason,  Franchises  639 

Rowley  V.  Adams,  Trusts  1881 

Rubery  v.    Jervoise,    Estate    for 

Years  1526 

Rubery  v.  Stephens,  Rent  207 

Ruddc  V.  Tucker,  Joint-tenancy  1309 

Rugby  (Char.)  v.  Merry  weather.  Ways    102 
Rumbold  V.  Rumbold,  Dower  1200 

Rumney  (Corp.)  case,  Waters  105 

Rumncy  v.  Eve,  Copyholds 
Rumsey  v.  Hayward,  Copyholds 

V.  Rawson,  Commons 

,  Estate  for  Years 

Ruscombc  v.  Here,  Estate  for  Years 

Rushden's  case.  Rent 

Russell  and  Broker's  case,  Common 

V.  Smythies,  Trusts 

V.  Darwin,  Estate  for  Years 

•  V.  Russell,  Mortgage 

V.  Smithers,  Mortgage 


Sagitary  v.  Hyde,  Assets 

St.  Auby's  case.  Rent 

St.  Cross  (Master,  &c.)  v.  Howard, 

Rent-charge 
St.  George  v.  St.  George,  Uses 
St.  George's  Han.  Sq.  (Rector)  v. 

Stewart,  Churches 
St.  John's  (Coll.  Ox.)  v.  Murcot,  Rent 
St.  John's  (Coll.  Ox.)  v.  Toddington, 

Franchises 
St.  John's  (Coll.  Cam.)  case,  Fran- 

chises 
St.  Luke's  V.  St.  Leonard's,  Commons 
St.  Paul  V.  Dudley  and  Ward,  (Vise.) 

Copyholds 
St.  Paul's  (Warden,  &c.)  v.  Dean, 

Tithes 
,  Offices 


§322 
1916 
1267 
1272. 
1480 
51 
180 


Sale  V.  Moore,  (not  Moon)  Trusts 
Salford's  case,  Fee  Simple 
Salisbury  v.  Bagott,  Trusts 

V.  Marshall,  Rent 

,  Estate   for 

Years 


(E.)  V,  Lamb,  Powers 
(Bp.)   V,   Philips,    Advow- 

sons 
,  Coparce- 


nary 
Salisbury's  (Bp.)  case.  Waste 

(Dean,  &c.)  case.  Common 

905  'Salmon  v.  Swann,  Estate  for  Years 


902 

276 

1463 

1440 

214 

298 

1794 

1527 

2203 

2232 

1096 

936 


Salter  v.  Butler,  Rent 
,  Life  Estate 


Russel's  case.  Uses 

Rust  V.  Roe,  Ancient  Demesne 

Rutland   (E.)   v.  Bowler,  Right  to 

Water  400 

V.  Greene,  Copyholds        854 

Rutland's  (Countess)  case.  Mills  93 

. ,  Dignities 

605.  622 
,  Copy- 
holds 854 
Rutland  v.  Doe,  Powers  2099 
Ryall  V.  Ryall,  Trusts  1765.  1785 
Ryder  v.  Bentham,  Right  to  Light, 

&c.  477 

V.  Bickerton,  Trusts  1952 

Ryley  v.  Hicks,  Estate  for  Years  1277 


V.  Grosvenor,  Estate  for  Years 

Saltern  v.  Saltern,  Life  Estate 
,    Estate  for  Years 


Salvin  v.  Thornton,  Estate  Tail 
,  Trusts 


Sarnmer  and  Force,  Copyholds 
Sammc's  case.  Rent 
,Uses 


Sammes  and  Payne's  case.  Curtesy 
V.  Rickman,  Trusts 


Sampson  v.  Patteson,  Mortgage 
Samwell  v.  Wake,  Assets 
Sanders  v.  Franks,  Powers 
Sanderson  v.   Harrison   or  Hanson, 


151 
1684 

90 
200 

721 

726 
95 

870 

140 

568 

1773 

965 

1799 

206 

1332 

2008 

122 

2299 
2470 

271 
1488 

180 
1053 
1451 
1056 
1451 
1007 
1720 

843 

166 
1647 
1099 
1930 
2202a 
49 
2001 


Rent 
Sande3's  v.  Oliff,  Common 

Right  of  W^ay 


Sandford  v.  Irby,  Trusts 

V.  Keeeh,  Trusts 

V.  Stevens,  Copyholds 


Sacheverell  v.  Froggatt.,  Rent 

V.  Porter,  Commons 

Sackville  v.  Evans,  Estate  for  Years 


12 


160 

278 

1458 


Sandon  v.  Plooper,  Mortgage 
Sands  and  Drury,  Copyholds 
Sands  v.  Drury,  Commons 

V.  Hempston,  Copyholds 

V.  Nugee,  Powers 


171.  196 

309 

366 

1831 

1802 

860 

2232 

834 

83 

761.  844 

2107 


Sandys  (Ld.)  v.  Sibthorpe,  Interest  in 

Land  109 

Sargent  v.  Reed,  Waters  109 


TABLE     OF     CASES. 


Ivii 


Sarth  or  Garth  v.   Blanfrey  (Lady), 

Powers  §  2101 

Saruin's  (Bp.)  case,  Offices  540 

Saunder's  case,  Mines  99 

,  Dower  1205 

Saunders  v.  Annesley,  Life  Estate  1043 

V.  Dehew,  Jointure  1236 

. ,  Trusts  1798 

,  Mortgage  2282 

V.    Freeman,    Estate     for 

Years  1500 

V.  Griffin,  Estate  for  Years   1492 

V.  Mose,  Right  of  Way  376 

V.  Newman,  Right  to  Water 

402, 

V.  Ritch,  Titlies 

V.  Welch,  Ancient  Demesne 

Carroll  or  Carrill,  Heir 


Savage  v, 

Savage's  case,  Offices 

Saverne  v.  Smith,  Estate  for  Years 

Savery  v.  Smith,  Franchises 

,  Ancient  Demesne 


422 

134 

924 

80 

576 

1335 

684 

928 

126 

2269 

1007 

38 

271.  339 

1414 

1305 

287 


Savil  v.  Savil,  Advowsons 

Saville  v.  Saville,  Mortgage 

Saville's  case,  Estate  Tail 

Sawlcy  V.  Gower,  Assets 

Sawyer's  case,  Common 

Say  V.  Barwick,  Estate  for  Years 

Say  V.  Smith,  Estate  for  Years 

Saye's  case,  Commons 

Sayer  v.  Pierse,  Mines  101 

Scamber  v.  Johnson,  Commons  278 

Scambler  v.  Walter,  Franchises  556 

Scarborough  (E.)  v.  Hunter,  Waters  108 

(May.)  V.  Butler,   Fran- 

chises 700 

Scattergood  v.  Harrison,  Trusts  1926 

Scholes  V.  Hargreaves,  Houses  89 

,  Common  270 

Sclater  v.  Travel,  Powers  1989 

Scott  v.  Airy,  Tithes  135 

V.  Fenhoullet,  Trusts  1743 

V.  Scholey,  Mortgage  2264 

V.  Scott,  Estates  on  Condition  2141 

V.  Surman,  Trusts  1947 

Scounden  v.  Hawley,  Trusts  1837 

Scrafton  v.  Quincey,  Powers  2027 

Scratton  v.  Brown,  Waters  105 

Scrimpshire  v.  Scrimpshirc,  Dower  1122 

Scroggs  V.  Scroggs,  Powers  1983a 

Scroop  V.  Scroop,  Trusts  1787 

Scrope's  case,  Powers  2074 
Scudamore  v.  Scudamore,  Land  and 

Money  74 

,  Trusts  1 858 

V.   Stratton,    Estate    for 

Years  1532 

Sculthorpe  v.  Burgess,  Trusts  1777/; 

Seabourne  v.  Seabournc,  Mortgage  2235 

Scagood  V.  Hone,  Franchises  633 

V.  Mcale,  Estate  for  Years  1291 

Seagrave  v.  Cirwaii,  Trusts  1768 

V.  Seagrave,  Jointure  1255 

Scale  V.  Baxter,  Estate  Tail  977 

Scaly  V.  Jago,  Land  and  Money  66 

Seaman  v.  Vawdry,  Rlines  98 

Seaward  v.  Wellock,  Estate  Tail  984 


Sccly  V.  Richards,  Estate  for  Years     §  128G 

Seintley  v.  Bendtl,  Mills  90 

Selby  V.  Alston,  Trusts  1957 

—  V.  Robinson,  Common  294 

—  V.  Selby,  Assets  54 
Scllack  V.  Harris,  Trusts  1768 
Senhousc  v.  Christian,  Ways  103 

,  Right  of  Way       366 

v.  Earl,  Jointure  1 248 

,  Trusts  1801 

Sergeants'  (The)  case.  Tithes  135 

Sergeson,  Ii\  parte.  Trusts  1840 

v.  Sealey,  Land  and  Money       78 

,  Estate  Tail  1009 

,  Jointure  1237 

,  Powers  2011 

Seton  V.  Slade,  Mortgage  2262 

Seven.     Sec  Swin. 

Sevier  v.  Greenway,  Mortgage 

Seymour's  case.  Fee  Simple 

Seymour  v.  Bennet,  Advowsons 

,  Offices 


2202 
950 
120 
563 

1215 


Seys  V.  Price,  Jointure 

Shadwcll   V.   Hutchinson,   Right    to 

Light,  &c.  1473 

Shaflo  V.  Sliafto,  Assets  48 

Shakespear  v.  Peppin,  Common  320 

Shannon  v.  Bradstrect,  Rent  175 

,    Estate    for 

Years  1369 

,  Powers  1897 

Shapland  v.  Smith,  Trusts           1707.  1720. 

1831 

Sharington  v.  Strotton,  Uses  1633 

Sharland  v.  Baker,  Fee  Simple  959 

Sharp  V.  Sharp,  Trusts  1846 

,  Powers  2106 

Shaw  V.  Rhodes,  Trusts  1716 

V.  Taylor,  Copyholds  814 

V.  Weigh,  Trusts  1714.  1831 

Sheddon  v.  Goodrich,  Trusts  1794 

Sheen  v.  Rickie,  Fixtures  23 

Sheffield  V.  Orrery  (Ld.),  Estate  Tail  981 

V.  Ratclitfe,  Advowsons  124 

Shelburn  v.  Biddulph,  Estate  Tail  1013 
,  Estate      for 

Years  1327 

Sheldoe  v.  Barnes,  Trusts  1783 

Shell  V.  Patterson,  Fee  Simple  961 

Shelly  V.  Edlin,  Fee  Simple  963 

Shelly's  case.  Estate  Tail  987 

,  Estate  for  Years  1405 

,  Uses  1617 

•,  Reversions  2350 


Siieppard    or    Shepherd   v.    Doolan, 

Estate  for  Years  1526 

V.  Gibbons,  Trusts  1831 

V.  Gosnold,  Franchises  G62 

V.  Mouls,  Trusts  1949 

V.  Twogood,  Trusts  1948 

Sherrard  v.   Harborough   (Ld.),  Ad- 
vowsons 122 

,  Trusts  1787a 

V.  Sherrard,  Rent  220 

Shctelworth  v.  Neville,  Assets  45 

!Shii)brook,  v.  Hinchinbrook,  Trusts  1916 

Shirley  v.  Ferrers  (Ld.),  Powers  2055 


Iviii 


TABLE    OF    CASES. 


Shirley  v.  Newman,   Tenancy  from 

Year  to  Year         §  1570. 
Shopland  or  Sliophne  v.  Rydler  or 
Roydler,  &e.,  Rent 
Copyholds 


1596 


030 

819 

1392 

437 

67 

1614 

1764 

Shove  V.  Pincke,  Powers  2076 

Shrapnel  v.  Vernon,  Trusts  1732 

Slirewsbury's  (Earl)  case,  Offices     546.  595 

: ,  Estates  on 

Condition  2146 


,  Estate  for  Years 

Short  V.  Taylor,  Right  to  Water 

V.  Wood,  Land  and  Money 

Shorbridge  v.  Lamplugh,  Uses 
,  Trusts 


Smallwood  v.  Coventry  (Bp.),  Estate 

for  Years  "  §  1347 

Smalman  v.  Agburrough,  Estate  for 

Years  '^  1353 

Smartle  v.  Penhallow,  Copyholds     787.  814 

,   Customary 

Estates 


Smith's  case,  Right  to  Water 

Franchises 
Smith  V.  Ano-ell,  Assets 

Reversions 


-,  Remainders 


Shrewsbiu-y  v,  Shrewsbury,  Estate  Tail 

Shury,  Surry,  or  Sury  v.  Pigott,  Right 

of  Way 

,  Right  to  Water 

Sidmouth  v.  Sidmouth,  Trusts 
Sidney  Barony,  Dignities 

■ V.  Sidney,  Curtesy 

. ,  Jointm-e 

Silk  V.  Prime,  Assets 
.  Trusts 


2327 

1008 

384 
425 

1786 
615 

1115 

1255 
42 

1724 
86 

1659 


Silly  V.  Silly,  Land 

Silvester  or  Sylvester  v.  Wilson,  Uses 

,  Trusts 

1708.  1829 
Simmons  v.  Norton,  Waste  2465 
Simpkin  v.  Ashurst,  Estate  at   Suf- 
ferance 1598, 
Simpson  v.  Bithwood,  Franchises  661  j 
,  Jointure  1235 

V.  Gutteridge,  Estate  for  Years 

^  1395 

V.  Hartopp,  Rent  238 

V.  Lcwthwaite,     Right    of 

Way  366 

V.  Turner,  Jointure,  1264 

Sims  V.  Bennet,  Tithes  134 
Simson  v.  Jones,  Trusts  1886 
Skele  and  Arnold,  Life  Estate  1046 
Skidmore  v.  Booth,  Rent  246 
Skinner,  Ex  parte.  Estate  for  Years  1454 
Skipworth  or  Skipwith  v.  Green,  Es- 
tate for  Years  1393 

Skirme  v.  Meyrick,  Mortgage  2270  i 

Skroggs  v.  Co'ldshil,  Offices  538 . 

Slater V.  Edwards,  Powers  1963  { 

Slater  v.  Slater,  Dower  1200 

Sleigh  v.  Bateman,  Estate  for  Years  1496 

Slingsby's  case.  Offices  594 

Sloan  v.  Cadogan,  Powers  2007 

Sloper  V.  Allan,  Common  350 

V.  Gibson,  Copyholds  905 

Slowrnan  v.  West,  Right  of  Way  364 


■V.  Arden,  Ancient  Demesne 
■V.  Ashton,  Powers 

■  V.  Camelford  (Ld.),  Powers 

■  V.  Chichester,  Mortgage 
•  V.  Claxton,  Land  and  Money 

Trusts 


-V.Clay,  Trusts 
-V.  Coffin,  Trusts 

-  V.  Cooke,  Estate  Tail 

-  V.  Doe,  Estate  for  Years 
Powers 


■  V.  Farnaby,  Remainders 
•  V.  Feverell,  Common 


2354 

432 

727 

So 

2351 

939 

2606 

2047 

2237 

75 

1794 

1730,  1955 

1787a 

1014 

1375 

2097 

2327 

276.316 


■V.  Frampton,  Ancient  Demesne  937 


,  Gatewood,  Franchises 
.  Goodwin,  Right  to  Water 
.  Hibbard,  Trusts 

Mortgage 


■v. 


-  V. 


King,  Trustf 
Leigh,  Powers 
Mapleback,  Rent 
Mil  ward,  Common 
Morris,  Prescription 
Parker,  Assets 
Parker,  Reversions 
Parkhurst,  Estates  on  Con 
dition 

,  Remainders 

,  Reversions 

Pearce  or  Pierce,  Rent 


684 
435 

1797 
2207fl 

1826 

1977 
151 
332 

2419 
35 

2351 


Raleigh,  Rent 
V.  Renard,  Copyholds 
v.  Risley,  Uses 
V.  Roe,  Ancient  Demesne 
V.  Russell,  Rent 
V.  St.  Paul's  (Dean,  &c.),  Copy 

holds 
V.  Smith,  Land  and  Money 
Manors 


2194 

2331 

2351 

196 

205 

821.  878 

1634 

937 


240 


-  V.  Stapleton,  Advowsons 

-  V.  Tindal,  Fee  Simple 

-  V.  Trinde,  Estate  for  Years 

-  V.  Walton,  Rent 

-  V.  Warren,  Uses 

-  V.  Wheeler,  C'opyholds 
,  Trusts 

,  Powers 


Sly  and  Mordaunt's  case.  Right  to 

Water  418 

Small  V.  Allen,  Fee  Simple  959 

V.  Wing,  Powers  2086 

Smallcombe  v.  Cross,  Estate  for  Years  1476 
Smallpiece    v.  Evans,    Estate   for 

Years  1509 


I V.  Wilson,  Estate  for  Years 

j V.  Wyatt,  Tithes 

Smith  and  Lane's  case,  Copyholds 
I  Smyth  or  Smy the.  Ex  parte.  Rent 


918 
78 
S8 
126 
959 
193 
832 
1677 
832 
1845 
1964 
127» 
134 
865 
220.  229 


Smyth's  case.  Franchises 
iSnag  V.  Fox,  Coi)y  holds 
Snagg's  case.  Trusts 


Snivthe,  Trusts 
Waste 


1884 

2470 

727 

793 

1822 


TABLE     OF    CASES. 


lix 


Snapc  V.  Turton,  Powers 
Sneed  v.  Culpepper,  Assets 

V,  Sneed,  Powers 

Snelson  v.  Corbet,  Assets 
Sneyd  v.  Sneyd,  Copyholds 

,  Dower 

Snow  V.  Cutler,  Estate  for  Years 

V.  Firebrass,  Otiices 

Snowdon  v.  Dales,  Trusts 
Soady  v.  Wilson,  Tithes 
Soane  v.  Ireland,  ^lanors 
Solby  V.  Robinson,  Common 
Solly  V.  Whitfield,  Jointure 
Some  V.  Barwish,  Rig-ht  to  Water 

,  Nuisance 

Somerset  (D.)  v.  France,  Copyholds 
-,  Customary 

Freeholds 
Somcrvillc  v.  Chapman,  Estate  for 

Years 
Sonday's  case.  Estate  Tail 
Soulsby  V.  Neirinff,  Rent 
,  Tenancy  from 

Year  to  Year 
Soutliall  V.  Leadbetter,  Rent 
Southampton  (Ld.)  v.  Hertford  (M.), 

Trusts 
Southby  V.  Stonehouse,  Estate  Tail 

,  Trusts 

Southcot  V.  Stowell,  Uses 
Soutliern  v.  Bellasis,  Rent 
Southwell  College  Church  (Chapter, 
&,c.)  V.  Lincoln  (Bp.), 
Estate  for  Years 

V.  Ward,  Powers 

Spalding's  case.  Estate  Tail 
Sparke's  case,  Copyholds 
Sparks  v.  Smith,  Estate  for  Years 
Sparrey's  case.  Curtesy 
Sparrow  v.  Hawkes,  Tenancy  from 
Year  to  Year 

V.  Reynolds,  Offices 

Speake  v.  Speake,  Jointure 
Speaker  v.  Styant,  Common 
Spear  v.  Buckner,  Fee  Simple 

V.  Crawtcr,  Commons 

,  Copyholds 

Spencer  v.  Clarke,  Fee  Simple 

V.  Marlborough  (D.),  Uses 

Spink  V.  Lewis,  Land  and  Money 
,  Trusts 

Spooner  v.  Day,  Commons 
Sprange  v.  Barnard,  Trusts 
Spring  V.  Csesar,  Uses 
Sprint  V.  Hicks,  Rent 
Sproule  V.  Pryor,  Assets 
Spurgeon  v.  Collier,  Trusts 

,  IMortgage 

Spurrier  v.  Hancock,  Trusts 

Spycr  V.  Spyer,  Commons 

Spyve  V.  Topham,  Uses 

Squire  v.  Campbell,  Right  to  Light, 

&c. 
Squire  v.  Compton,  Trusts 

V.  -Mayer,  Fixtures 

Stabhack  v.  Lcat,  Mortgage 
Stables  V.  ]\Ielton,  Common 
Staccy  V.  Elpp,  Trusts 


1961 

5:2 

2006 

54 

844 
1152 
U-2[) 

538 
1715 

134 
88 

294 
1258 

441 
2464 

778 

921 

1530 

984 
256 

1596 
155 

1716 

981 

193G 

1671 

194 


Stackpoole  v.  Stackpoole,  Trusts 
Stackhouse  v.  Barnston,  Powers 
Stacy's  or  Stacie's  case,  Copyholds 


§  1923 
2017 

848.  914 


Stafford  (IMay.),  v.  Bolton,  Advowsons 

(E.)  V.   Buckley,  Interest  in 

Land 

,  Fee  Simple 

.  Estate  Tail 


V.  Hamston,  Waters 

Stailton  v.  Stailton,  Estate  Tail 
Stamford  (E.)  v.  Hobart,  Trusts 
Stammers  v.  Dixon,  Copyholds 
Stampe  v.  Burgess,  Common 

V.  Clinton,  Advowsons 

Stamper  v.  Pickering,  Dower 
Standen  v.  Standen,  Assets 

,  Trusts 

Powers 


Standred  v.  Shoreditch,  Common 
Stanfield  v.  Habergham,  Trusts 
Stanhope  v.  Verncy,  Trusts 
Staniforth  v.  Fox,  Estate  for  Years 
Stanley  v.  Agnew,  Estate  for  Years 

V.  Lennard,  Trusts 

V.  Stanley,  Uses 

V.  White,  Woods,  &c. 

Stansell  v.  Jollaud,  Easements 
Stansiield  v.  Habergham,  Customary 

Estates 
Stanton  v.  Barnes,  Copyholds 


122 

83 

953 

981 

113 

1007 

1827 

634 

330 

126 

1201 

49 

1840 

2036 

271 

17^7a 

1746 

12S4 

1288 

1707 

1667 

96 

115 

2359 
^37 


1335 
2104 
979 
905 
1386 
1092 

1596 
587 

1230 
331 
959 
95 
915 
953 

1686 
721 

1789 
329 

1774 

1681 

209 

56 

1920 

2262 

1761 
95 

1673 

448 

1738 

19' 

22026 

273 

1S42 


V.  Hall,  Trusts 


-,  Customary  Estates  2358 


1751 

366 

49 

1016 

441 

1787a 

1437 

1106 


Steed  V.  Newdigate,  Trusts 
Steel  V.  Pricket,  Manors 
Ways 


Staple  V.  Haydon,  Right  of  Way 
Stapleton  v.  Colville,  Assets 
Stapleton's  case.  Estate  Tail 
Star  V.  Rookesby,  Right  to  Water 
Starkey  v.  Brooke,  Trusts 
Stead  V.  Creagh,  Estate  for  Life 
Steadman  v.  Pulling,  Curtesy 
Stebbiuo-  v.  Gosnell  or  Gosnal,  Com- 
mon    296 

_  . ,  Copyholds  850 

Stedman  v.  Page  or  Bates,  Rent  226 

Coparcenary  2296 

1759 

88 

102 

2459 

1613 

1489 

1635 

127 

1391 

1243 

8 

127 

921 

1479 

9G0 

873 

214 

1373 


for 


Steele  v.  Houghton,  Trespass 
Stephens'  case.  Uses 
Stephens   v.    Bridges,    Estate 

Years 
Stephens  v.  Brittcl    or    Brittredffe, 

Uses  1633, 
V.  Clark,  Next  Avoidance 

V.  Elliot,  Estate  for  Years 

V.  Gaule,  Jointiu-e 

V.  Wall,  Chattels  Real 

Next  Avoidance 


Stephenson  v.  Hill,  Customary  Free- 

holds 
Sterne,  Ex  Parte,  Estate  for  Years 
Stevens  v.  Snelling,  Fee  Simple 
Stevens'  case.  Copyholds 
Stevenson  v.  Lambard  (not  Lambert 

or  Lombard,")  Rent 
,    Estate    for 


Years 


Ix 


TABLE    OF    CASES. 


Stevenson  v.  WoocI,  Rent 
Steverton  v.  Scroggs,  Franchises 
Steward  v.  Lombe,  Fixtures 
,  Mills 


§198 

655 

24 

93 

1766.1768 

1914 

297.  359 

1978 


Stiekland  v.  Aldridge,Trusts 
Stickney  v.  Sevvell,  Trusts 
Stile  V.  Butts,  Common 

V.  Tomson,  Powers 

Stileman  v.  Ashdown,  Trusts  1787 
Stirling  v.  Fenlington,  Curtesy  1080 
,  Tenancy  in 

Common  2317 

Stockbridgc's  case,  Jointure  1262 

Stockman  v.  Hampton,  Uses  1662 

Stocks  or  Storks  v.  Booth,  Right  to 

Pews  482.  495 

Stoke  V.  Sykes,  Advowsons  126 

Stokes  V.  Cooper,  Rent  205 

Stone  V.  Evans,  Mortgage  2227 

Stone  V.  Cartright,  Right  to  Light, 

&c.  474 

V.  Teid,  Life  Estate  1038 

V.  Wakeman,  Right   of  Way 

363.  372 

Stone's  case,  Franchises  642 

Stonehouse   v,     Evelyn,    Land    and 

Money 

,  Trusts 

Stonely  v.  Bracebrids^e,  Uses 


Stonesby  v.  Mussenden,  Common 
Stoner  v.  Curwen,  Trusts 
Storey  v.  Robinson,  Rent 
Storks  V.  Booth.     See  Stocks. 
Stott  V.  Stott,  Houses 

,   Right  of  Way 

Stoughton  V.  Leigh,  Mines 
,  Dower 


72 

1787a 
1685 

280 
1809 

238 


89 
363.  379 

99 
1135.  1205 
Strachy  v.  Francis,   Churches  91 

Strafford  (E.)  v.  Buckley,  Annuity  263 

V.  Powell.     See  Strafford. 

V.  Wentworth  (Lady,  ) 

Rent  13. 

Strahan  v.  Sutton,  Dower 


Strangeways  v.  Newton,  Uses 
Stratford   (not    Stafford)   v.   Powell, 
Trusts  1814. 

Stratton  v.  Best,  Uses 

,  Joint-Tenancy 

Streatfield  v.  Streatfield,  Trusts 
Strickland    v.  Maxwell,    Estate    for  ^ 


194 
1195 
1698 


Years 

Strode  v.  Blackbourne,  Trusts 
Strong  v.  Teate,  Trusts 
Stroud  v.  Rogers,  Rent 
Stuart   V.    Bute    (M.,)   Land    and 

Money 
Stubbs  V.  Flower,  Franchises 

V.  Sargon,  Trusts 

Stukcley  v.  Butler,  Trees 
Sturch  V.  Young,  Mortgage 
Sturgis  V.  Champneys,  Mortgage 
Styant  v.  Staker,  Common 

,  Copyholds 

Styles  V.  Wardle,  Estate  for  Years 
Suffolk's  (D.)  case.  Copyholds 
Sullivan  v.  Bishop,  Rent 
Surey  v.  Brown,  Rent 


1818 
1666 
2304 
1810 

1278 
1899 
1840 

258 


78 

653 

1777a.  1805 

25 

2321 

2281 

344 

899 

1303 

828 

255 

163 


Sussex  (Earl)  v.  Temple,  Joint-Ten- 

ancy  §  2304 

Sutherland  (C.)  v.  Northmorc  or  Ross- 
more,  Powers  1990.  2004 
Sutton  v.  Champlin,  Life  Estate  1039 

v.   Montfort  (Ld.,)  Right  to 

Light,  &c.  478 
Sutton  v.  Rolfc,  Dower  1131 
,  Tenancy  in  Com- 
mon 2318a 
Sutton  Colefield's  case.  Trusts  1800 
Sutton's  (Hospital)  case,  Franchises 

698.  720 
Swaine  V.  Burton,  Uses  1617 

V.  Falconer,  Interest  in  Land         83 

Swan  V.  Gateland,  Tenures  744 

V.  Morgan,  Franchises  654 

Swan's  case.  Franchises  671 

Swanley  v.  Lime  (Corp.,)  Waters  113 

Swann  v.  Falmouth  (E.,)  Rent  246 

Swannock  v.  Lyford,  Dower  1174 

Swansborongh  v.  Coventry,  Right  to 

Light,  &.C.  469 

S Wayne's  ease.  Common  296.  340 

,  Copyholds  843 


Sweeper    v.    Randal,    Estate    for 

Years  1390 

Sweet  V.  Southcote,  Trusts  1799 
Sweetapple    v.    Bindon,    Land    and 

Money  63 

,  Curtesy  1106 

,  Trusts  1815 

,  Customary 

Estates  2369 
Sweton  or  Sweetnam  v.  Cushe,  Estate 

for  Years  1504 

Swin  or  Seven  v.  Mihil,  Rent  196 

Swincrton  v.  Miller,  Rent  216 

Sydenham  v.  Capps,  Estate  for  Years  1318 

Sym's  case.  Estate  for  Years  433 

Symance  v.  Taltam,  Trusts  1913 

Symes  v.  Pennant,  Copyholds  830 

Symms  v.  Ruttur,  Land  and  Money  61 
Symonds    v.    Cudniore,    Estate    for 

Years  1326 
,  Descent  2492 


Tabor  v.  Grovcr,  Mortgage 
Taggart  v.  Taggart,  Trusts 
Tait  V.  Northwich,  Assets 
Talbot  V.  Braddill,  Mortgage 

V.  Woodhouse,  Life  Estate 

Talbot's  case.  Rent 

,  Copyholds 


Talcntine   v.    Denton,    Estate    for 

Years 
Tanfield  v.  Rogers,  Estate  for  Years 
Tanistry  case,  Tenures 
Tankerville  (E.)  v.  Fawcett,  Assets 
,  V.  Wingfield,    Pow- 


ers 
Tanner  and  Hnhbs'  case.  Common 
Tapner  v.  Mcrlot,  Uses 
Tarback  v.  Marbury,  Powers 
Tardiff  v.  Scrugham,  Mortgage 
Tarrant  v.  Hellier,  Copyholds 
v.  Thompson,  Fixtures 


II 
1812 

49 
2273 
1045 

203 
803 

1461 

1324 

755 

48 

2096 

331 

1665 

20686 

2207a 

883 

24 


TADLE    OF     CASES. 


Ixi 


Targus  v.  Pii|rct  (not  Paget,)  Trusts  (j  1814 


Tarbuiy  v.  Elcliin,  ^Mortgage 
Taster  v.  Marriot,  Trusts 
Tattersell's  case,  Franchises 
Taunton  v.  Costar,  Entry 
Taverner  and  Cromwell's  case,  Copy- 
holds 
Tawney  v.  Crowtlier,  Trusta 
Taylcrson  v.  Peters,  Rent 
Taylor  v.  Bath,  (May.,)  Franchises 

V.  Colt,  Entry 

V.    Dulwich    (Coll.,)    Fran- 

chises 
— — ,  Estate  for  Years 


v.Glanville,  Trusts 
V.  Hooc,  Copyholds 
V.  Horde,  Estate  tor  Years 

•  V.  James,  Francliises 

■  V.  Lanyon,  Rent 

■  V.  Philips,  Customary  Estates 

•  V.  Shaw,  Customary  Estates 
-  V.  Stibbcrt,  Trusts 

,  ]\Iortorage 

.  V.  Taylor,  Trusts  1786, 


1802 

6G5 

2474 

7G6 

1768 

242 

718 

2474 

705 

1530 

1889 

916 

1375 

G65 

290 

2360 

2355 

1798 

2257 

1826 


Thompson  v.  Thompson,  Rent 
V.  Townc,  Powers 


'1  hompson's  case.  Estate  lor  Years 
Thorhy  v.  Yeats,  Trusts 
I'horiiborough   v.   Baker, 


§  196 
20C2 
1.322 

18iJ0 


Morfgaore 


Thorndike  v.  Allinton,  Rent 
Thome  v.  Rolie,  Dower 

V.  Thorne,  Powers 


and 


Thornhill  v.  Evans,  Mortgage 
Tiiornton  v.  Adams,  Rent 

V.    Hawky,    Land 

Money 
Thorpe  v.  Thorpe,  Mortgage 
Throckmorton  v.  Tracy,  Next  Avoid- 
ance 
,  Franchises 


11. 1240a 

172 

1125 

1992 

2222 

244 


Tlirogmorton  v.  Wliclpdale,  Tenancy 

from  Year  to  Year 
Thruxton  v.  Att.-Gen.,  Assets 

,  Powers 

Thunder    v.    Belcher,    Estate    for 

Years 
,  Tenancy    from 


V.  Waters,  Easements, 
V.  Wheeler,  Trusts 

-,  Mortgage 


V.  Whitehead,  Right  of  Way, 


Year  to  Year 
525'Thursfield  and  Jones,  Franchises 
1822  iThwaites  v.  Dye,  Powers 
2238|Thynne  v.Cary,  Trusts 

370  V.  Thynn,  Trusts 

IS'SS.  193llTidd  v.  Lister,  Trusts 


Tebbs  V.  Carpenter,  Trusts 

Tempest  v.  Rawlings,  Estate  for  Years         i  Tiffin  v.  Tiffin,  Assets 

12881 .Trusts 


1887 
1216 
1252 


\ 


Tenant  v.  Brown,  Powers 

v.  Goldwin,  Easements 

,  Nuisance 

Tcnny  v.  Agar,  Estate  Tail 
Terry  v.  Terry,  Trusts 
Tew  V.  Wintcrton,  Dower 

,  Jointure 

Tewksburj',  (Bailitfs,  &c.)  v.  Brick- 

nell,  Franchises        '  694 

Thakrah   or   Thakray   v.   Seymour, 

Right  of  Way  389 

Thayer  v.  Thayer,  Powers  2002 

Thecbridge  v.  Kilburn,  Chattels  Real  7 

Thelluson  v.  Woodford,  Election  2426 

Thetford's  (May.)  case,  Franchises  713 

Thin  or  Thinne  v.  Chomlcy,  Rent  155 

V.  Thinne,  Manors  88 

Thomas  v.  Britnell,  Powers  2116 

V.  Cook,  Rent  258 

V.  Nichols,  Common  350 

V.  Porter,  Copyholds  91G 

V.  Thomas.  Right  to  Water        406 

■ ,  Tenancy    from 

Year  to  Year  1582 

Thomasin  v.  Mackworth,  Tenancy  at 

Sufferance  1597 

Thompson  v.  Dixon,  Land  and  Money      78 

. V.  Lavkl)',  Uses  1661 

■  v.  Leach,  Remainders  2337 

V.  Maberly,  Tenancy  from 

Year  to  Year  1578 

V.  Mashiter,  Rent  239 

v.  Nelson,  Dower  1195 

■        V.  Simpson,  Powers  2048 


1978  i  Tilbury  v.  Barbut,  Estate  Tail 

528, Timbrel]  v.  Bullock,  Rent 
2464,Timswell  v.  Perkins,  Heir 
982  iTimmins  v,  Rowlinson,  Rent 

,  Estate 

Will 
— ,  Tenancy  from 


61 
2264 

127 

704 

572 

40 

1983 

1398 

1575 
710 
2048 
1720 
1769 
1940 
40 
1741 
982 
211 
82 
256 


at 


Year  to  Year 
Tinnery  v.  Fisher,  Common 
Tinney  v.  Tinney,  Dower 
,  Jointure 


Tippen  v.  Grover,  Estate  for  Years 
Tipping  V.   Cosin    or   Cosins,   t^ses, 

1641 
Tisdale  v.  Essex,  Estate  for  Years 
Titley  v.  Egerton,  Mortgage 
Titus  V.  Perkins,  Copyholds 
Toilet  V.  Toilet,  Jointlire 
Tomkin  or  Tompkins  v.  Crocker,  Fran- 
chises 
Tom  kins. 
Trusts 
Tomkyns  v.  Piasent,  Rent 

V.  Willan,  Fee  Simple 


1543 

1565 
275 
1193 
1220 
1461 

1648 

1282 

11 

796 

1237 


Tomlin  v.  Fuller,  Right  of  Way 
Tomlinson  v.  Brown,  Right  to  Light, 
&c. 
V.  Dighton,  Powers 


Tonkins  v.  Ennis,  Trusts 
Tooke  v.  Hastings,  Jointure 
Toplis  V.  Grane,  Rent 
Topping  V.  Piggot,  Trusts 
Tott  V.  Ingram,  Franchises 
Touch  v.  Rand,  Mortgage 


631 

1833 
193 
963 
378 

474 
1996 
1793 
1231 

247 
1913 

641 
2238 


Ixii 


TABLE     OF    CASES. 


Tovey  v.  Pitcher,  Rent 

Towel  V.  ( "ornisli,  Copyholds 

Tower  v.  Rous,  Assets 

Towers  v.  Davys,  Jointure 

Townley  v.  Bid  well.  Land  and  Money 

V.  Gibson,  Mines 

,  Copyholds 

Townsend  v.  Ash,  Interest  in  Land 

V.  Lawton,  Trusts 

V.  Townsend,  Trusts 

V.  Wilson,  Trusts 

,  Powers 

. V.  Windham,  Powers 


Townson  v.  Tickle,  Dower  1 170. 

Tracey  or  Tracy  v.  Letiiulier,  Re- 
mainders 
Tracey  or  Tracy  v.  Talbot,  Rent 
Traftbrd  v.  Boelim,  Land  and  Money 

Trusts 

V.  Trafford,  Trusts 

Treacle  v.  Coke,  Rent 
Treasurer  (Ld.)  v.  Barton,  Rent 
Tredway  v.  Fotherlcy,  Copyholds 
Treuicere  v.  Morrison,  Rent 
Trent  v.  Hanning,  Trusts 
Treport's  case,  liifc  Estate 


Estate  for  Years 


Trcsham  v.  Lant,  Estate  for  Years 

Trevillian  v.  Andrew,  Estate  at  Suf- 
ferance 

Trcvivan  v.  Lawrence,  Estate  for 
Years 

Trevor  v.  Trevor,  Uses 

,  Trusts 

Trigg  V.  Payte,  Common 

V.  Turner,  Common 

Trimmer  v.  Bayue,  Assets 

,  Trusts 

Trinity  Coll.  v.  Browne,  Copyliolds 
Tristram  v.  Baltinglass  (Lady,)  Estate 

for  Years 
Tritton  v.  Foote,  Estate  for  Years 
Trotter  v.  Blake,  Copyliolds 
Troughton  v.  Troughton,  Powers 
Trower  v.  Chadwick,  Easements 
Trucman  v.  Walgliam,  Ways 
Trulock  V.  Rigsby,  Common 

V.  Wliitc,  Common 

Tubervill  v.  Tippers,  Franchises 
Tucker  v.  Newman,  Right  to  Water 

V.  Thruxton,  Mortgage 

v.  Tucker,  Trusts 

Tudor  v.  Scmyne,  Trusts  1719. 

Tuffiiell  V.  Page,  Fee  Simple 

.^ ,  Trusts 

. ,  Customary  Estates 

Tukeley  (not  Tuckeley)  v.  Hawkins, 

Francliises 
Tullet  V.  Armstrong,  Trusts 
•Tullit  V,  Tullit,  Trusts 
Turner's  case.  Estate  for  Years 

,  Trusts 

Turner  v.  Allday,  Rent 

v.'^Oano,  Mortgage 

V.  Hodges,  Estate  for  Years 

,  Estate  at  Will 


205 

912 

49 

1248 

76 

98 

857 

83 

1913 

1729 

1850 

1977 

2055 

1840 

2333 

242 

67 

1878 

1818 

205 

209 

780 

207 

1830 

1034 

1382 

1296 

1602 

1423 

1638 

1809 

351 

305 

54 

1769 

782 

1371 

1527 

796 

2057 

505 

102 

276 

326 

633 

443 

2261 

1865 

17.53 

958 

1721 

2302 

633 
1755 
1762 
1432 
1753 

192 

11 

1399 

1545 


Turner  v.  Jennings,  Jointure 

V.  Mcymott,  Entry 

V.  Richardson,  Estate 

Years 

V.  Richmond,  Mortgage 

V.  Smith,  Tithes 

V.  Turner,  Annuity 

Turney  v.  Sturges,  Dower 
Turnman  v.  Cooper,  Estate  Tail 
Turquand  v.  Knight,  Trusts 
Turton  v.  Reignolds,  Churches 
Turvill  V.  Aynsworth,  Francliises 
Tweddel  v.  Tweddell  Assets 
Tweedale  v.  Coventry,  Assets 
Twiss  V.  Brazen-Nose  Coll.,  Tithes 
Twyne's  case,  Powers 
Tyler  v.  Lake,  Trusts 
Tylcy  and  Sud,  Estate  at  Will 
Tylle  v.  Pierce,  Powers 
Tyndal  v.  Toller,  Franchises 
Tyndale  v.  Warrc,  Assets 
Tyre  v.  Littleton,  Copyholds 
Tyrrel's  case.  Uses 

Trusts 


for 


1145 


Tyrrill  v.  Hope,  Trusts 
Tyrringham's  case,  C'ommon 
Tyrwhit  v.  Winnc,  Mines 
Tyte  V.  WiUiams,  Estate  Tail 

Umble  V.  Fisher,  Rent 
Underbill  v.  Kelsey,  Copyholds. 
Underwood  v.  Stevens,   Trusts 

V.  Swain,  Heir 


Uniackc,  In  re.  Trusts 

Upton  V.  Ferrers  (Ld.),  Heir-looms 

Urch  V.  Walker,  Trusts 

Urquhart  v.  King,  Trusts 

Uthwaito  V.  Bryant,  Fee  Simple 

Uvedale  v.  Uvcdale,  Powers 

U.xbridgc  (Ld.),  v.  Staveland,  Copyholds 

770.  916 


§1243 
2474 

1456 

2274rt 

136 

263 

,  1181 

975 

19.30 

90 

699 

48 

35 

136 

20686 

1756 

1556 

1985 

633 

35 

8G8 

1656 

1704 

1822 

270 

98 

982 

194 
902 

1921. 

1952 
80 

1846 
16 

1907 

1907 
958 

1988 


Valentine  v.  Denton,  Rent 

V.  Penny,  Common 


Vandebende  v.  Jjcvingston,  Trusts 
Vandenanker  v.  Desborough,  Estate 

for  Years 
V^anderzee  v.  Aclom,  Powers 
Vane  v.  Bernard,  (Ld.)  Life  Estate 
V.  Fletcher,  Heir 


Vane's  case,  Franchises 
Vaughan  v.  Atkins,  Customary  Free- 
holds 

V.  Atwood,  Franchises 

v.  Burslcm,  Trusts 


Vaux's  (Ld.)  case.  Estate  for  Years 
Vauxhall  Bridge  Company,  Ex  parte, 

Fixtures 
Vcn  V.  Howell,  Copyholds 
Verior  v.  Sandwicli.  (May.)  Offices 
Vcrney  v.  Verney,  Life  Estate 
Vernon  v.  Prior,  Riglit  of  Way 

V.  Vawdry,  Trusts 

V.  Vernon,  Rent 

,  Powers. 


172 

303 

1948 

1529 
2049 
1041 

82 
650 

921 

646 

1818 

1312 

24 

787 

560 
1038 

372 
1949 

220 
2009 


TABLE    OF    CASES. 


Ixiii 


Vernon  v.  Vernon,  Trusts 
Vernon's  case,  Dower 

,  Jointure 

,  Uses 

Veseye's  (lA.)  case,  Dignities 
Vickers  v.  Cowel,  Trusts 
Vigrass  v.  Binfield,  Trusts 
Villa  Real   v.    Gahvay,   (Ld.)   Dow- 
er 

,  Election 

Villers  v.  Beaumont,  Jointure 
,  Uses 


V.  Handley,  Assets 


1738. 


Villers  v.  Villers,  Trusts 
Viner  v.  Vaughan,  Mines 
Vickersterne  v.  Ebden,  Waters 
Vizard  v.  Longden  or  Longdale,  Joint- 
ure 
Voogt  V.  Winch,  Waters 
Voogt  V.  Winch,  Right  to  Water 
Vochcll  V.  Doncastell,  Rent 
Vowles  V.  Miller,  Common 

Wade  V.  Marsh,  Rent 

V.  Paget,  Jointure 

,  Powers 

Wagstaff  V.  Smith,  Trusts  1750. 

V.  WagstatF,  Powers 

Wainwright  v.  Bendlowes,  Assets 
Waite  V.  Whorwood,  Trusts 
Wake  V.  Conyers,  Copyholds 

V.  Tinkler,  Trusts 

V.  Wake,  Dower 

Wakefield  v.  Childs,  Dower 
Wakefbrd's  case.  Copyholds 
Wakeford,  In  re.  Powers 
Wakeman  v.  West,  Right  to  Water 
Waldo  or  Waldoe  v.  Bartlett,  Cus- 
tomary Estates 

V.  Martin,  Offices 

V.  Waldo,  Trusts 

Walker  v.  Denne,  Land  and  !\Ioney 
V.  Hammersley,  Next  Avoid- 
ance 

V.  Jackson,  Assets 

V.  Meager,  Assets 

V.  Millar,  Common 

V.  Smallwood,  Trusts 

V.  Symonds,  Trusts 

V.  Walieman,   Estate    for 

Years 

V.  Walker,  Jointure 

V.  Wetherell,  Trusts 

Walker's  case.  Franchises 

Walker   and   Nevil's   (not  Leving's) 

case.  Dower 
Wall  V.  Bright,  Trusts 

V.  Langlands,  Fee  Simple 

V.  Thurborne,  Powers 

Wallace  v.  King,  Rent 

V.  M'Larcn,  Rent 

Waller  v.  Andrews,  Rent 
V.  Carapian,   Estate   for 

Years 
Wallis  V.  Harrison,  Easements 
Walpole  V.  Conway,  Powers 


1771 
1181 
1211 
1661 
606 
1783 
1914 

1199 
2129 
1219 
1635 
35 
,1830 
100 
109 

1225 

107 

415 

211 

95 

230 
1237 
2004 
1829 
2032 
49 
1947 

915 
1864 

114 
1208 

864 
2111 

431 

2366 

588 

1884 

60 

127 

49 

42 

281 

1878 
1950 

1370 
1220 

1888 
726 

1202 
1840 
961 
2068rj 
249 
228 
198 

1270 

523 

2063 


Walrond  v.  Pollard,  Advowsons 
Walsall  Y.  Heath,  Rent 
,  Estate  for  Years 


Walter  v.  Ciiauner,  Commons 

V.  Hanger,  Franchises 

V.  Maunde,  Land  and  Money 

V.  Rumbold,  Rent 

V.  Sumner,  Churches 


Walters  v.  Pfeil,  Easements 
Walton  V.  Walton,  Trusts 
Walton's  case,  Copyliolds 
Walwyn  v.  Courts,  Trusts 
Wansborough  v.  Manton,  Fixtures 

V.  Audland,  Trusts 

V.  Cresswell,  Waters 

,  Common 


Ward  V.  Dettensam,  Waste 
V.  Dudley,  Dower 

V.  Knight,  Franchises 

V.  Lambert,  LIses 

Ward  V.  Lant,  Trusts 
V.  Lenthal,  Powers 

V.  Shaw,  Rent 

V.  Tuddingham,  Uses 

V.  Walthers,  Jointure 

Ward's  case.  Mills 

■,  Copyholds 


Wardle  v.  Hargreaves,  Trusts 
Ware  v.  Polhill,  Land  and  Money 

,  Uses 

Trusts 


Waring  v.  Coventry,  Trusts 

V.  Dewberry,  Rent 

V.  Griffiths,  Easements 

Warman   v.   Faithful,   Estate   for 

Years 
Warnstrey  v.  Tanficld,  Trusts 
VV^arner,  Ex  parte.  Mortgage 
Warrington  v.  Moseley,  Ways 
Wartcr  (not  Waster)  v.  Hutchinson, 
Trusts 

V.  Warter,  Uses 

Warwick  v.  Noakes,  Rent 
Washborn  v.  Downes,  Trusts 
Waterman  v.  Smith,  Powers 
V.  Soper,  Woods 


Wafers  v.  Weigall,  Rent 
Wathcrall  v.  How  ells.  Waste 
Watkinson   v.   Man,    Estate  for 

Years 
Watson  V.  Brickwood,  Assets 

V.  Hemsworth,  (Hosp.)  Estate 

for  Years 

V.  Main,  Rent 

Watt   V.    Maydewell,    Estate    for 
Years 

V.  Watt,  Powers 

Watts  V.  Ball,  Curtesy 


§125 

151 
1358 

281 

672 
75 

245 
90 

305 
1792 

843 

1779 

22 

1806 

108 

304 
2470 
1163 

684 

16.34 

17776 

2066 

224 

1636 

1264 

93 

833 
1827 
78 
1686 
1716 
1822 

199 

499 

1484 
1719 

2205 
102 

1829 
1659 

196 

1720 

2002 

96 

196 
2466 


1330 
49 

1530 
244 


V.  Boddington,  Trusts 
V.  Girdlestone,  Trusts 
Oirnell,  Rent 


1497 
2012,  2013 
1102 
1805 
1949 
201 
1433 


Watts  V.  Thomas,  Estate  for  Years 
Weakley    v.   Bicknell,  Estate   for 

Years  _  1292 
Weale  v.  Lower,  Heir  81 
,  Estate  Tail                 1007 


Ixiv 


TABLE     OF     CASES, 


Weaver  v.  Maule,  Mortgage 
Webb  V.  Bell,  Rent 

V.  Hearing,  Estate  Tail 

V.  Jigg,  Rent 

V.  Jones,  Assets 

V,  Linnington,  Life  Estate 

V.  Paternoster,  Easements 

V.  Pliimmer,     Estate    for 

Years 

V.  Shaftesbury,  (Ld.)  Land  and 

Money 

. V.  Webb,  Life  Estate 

,  Estate  for  Years 

Webb's  case,  Ways 

,  Offices 

Hab.  Corp.  case.  Common 

Webster  v.  Bach,  Right  of  Way 
Weddcrburn   v.   Wedderburn, 

Trusts 
Weekly  v.  Wildman,  Common 
Weeks  v.  Carvel,  Tenures 
Weeks  v.  Peach,  Rent 

-,  Annuity 


•  V.  Staker,  Common 
V.  Tillard,  Rent 


Weeton  v.  Woodcock,  Fixtures 
Wegg  V.  Viller,  Uses 
Weiss  V.  Dill,  Trusts 
Weld  V.  Hornby,  Waters 

,Riglit  to  Water 

Weller  v.  Smeaton,  Right  to  Water 
Wellcsley  v.  Wcllcsley,  Trusts 
Wellington  v,  Wellington,  Fee  Sim- 
ple 
Wellock  v.  Hammond,  Tenures 
Wells  V.  Miles,  Franchises 

V,  Ody,  Right  to  Water  433 

V.  Sayer,  Trusts 

(Dean,  &,c.)  v.  Bawden,  Copy- 
holds 
Wentworth  v.  Clay,  Common 

V.  Wentworth,  Dower 

— — V.  Wright,  Advowsons 

Wentworth's  (Ld.)  case.  Franchises 
West  V.  Erisscy,  Trusts 
Westborne   v.  Mordaunt,  Right  to 

Water 
Westborne  v.  Mordant,  Easements 
WesterdcU  v.  Dale,  Mortgage 
Westfaling  v.  Westfaling,  Assets 

,    Advowsons 

,    Life  Estate 

Westlcy  v.  Clarke,  Trusts 
Westmoreland,  (E.)  Copyholds 
Westwick  v.  Wyer,  Copyholds 
Wetherell  v.  Hall,  Trusts 

V.  Howells,  Houses 

Whalcy  v.  Cox,  Heir 

V.  Tankard,  Estate  for  Years 


§11 
235 

978 

253 

49 

1036 

524 

1474 


1037 
1479 
402 
595 
306 
376 

1729 
231 
749 
179 
263 
3.-)l 
167 
22 

1693 

1928 
108 
418 
437 

1761 

95 

750 

683 

.463 

1750 


Wheeler    v.    Danby,    Estate    for 
Years 

V.  Thorogood,  Estate  for 

Years 

V.  Twogood,  Manors 

Wheldale  v.    Partridge,  Land   and 

Money 
,  Trusts 


§1349 

1272 

88 


Whelpdale's  case.  Estate  for  Years 
Whetstone  v.  Sainsbury,  Mortgage 
and  Wentworth,  Estate  for 


Whiehcote  v. 


Years 
Lawrence,  Estate 
Years 
Trusts 


61 
1794 
1415 
2234 

1355 


for 


Whinchcombc  v.  Pulliston 
Whiskon  v.  Clayton,  Powers 
Whistler's  case.  Manors 
,  Advowsons 


Whistler  v. 


Webster,  Powers 
,  Election 


Whitacre's  case.  Offices 
Whitbread,  Ex  parte.  Mortgage 

v.  Jenny,  Copyholds 

Whitchurch  ~  '   ' 

Water 


1454 

1945 

1734 

2059 

88 

128 

2047 

2426 

581 

2203 

800.  902 


V.    Hide,    Right    to 
V.  Whitchurch,  Trusts 


837 
315 

1146 
122 
648 

1810 

427 
528 
2227 
36 
126 
1051 
1918 
776 
913 
1936 
89 
80 
1501 
^Vhalley  v.  Thompson,  Right  of  Way 

366.  385 

v.  Whalley,  Trusts  1731.  1803 

Wheate  v.  Hall,  Trusts  1819 

Powers  1966</ 

Wheatland  and    Paiiic's  case,   Com- 
mon 326 
Whcatlcy  V.  Purr,  Trusts                        1806 


White  V.  Carter,  Trusts 

V.  Coleman,  Common 

■    V.  Collins,  Life  Estate 

V.  Gcrishe,  Rent 

V,  Hawkins,   Tenancy   from 

Year  to  Year 

V.  Nicholson,  Estate  for  Years 

V.  Nutt,  Trusts 

V.  Reeves,  Right  of  Way 

v.  Saycr,  Common 

,  Estate  for  Years 

v.  Simpson,  Fee  Simple 


437 

1739 

1816 

296.  301 

1029 

209 


White,  Life  Estate 
,  Estate  for  Years 


,  Powers 


Whiteacre  v.  Symonds,  Tenancy  from 
Year  to  Year 


Whitfield 


v.  Bennct,  Trusts 
V.  Bewitt,  Life  Estate 
v.  Fausset,  Uses 
v.  Hunt,  Copyholds 
V.  Pinder,  Rent 
v.  Wcedon,  Commons 
Wilkins,  Estate  Tail 


1627. 


Whiting  V. 

Whitley  v.  Roberts,  Rent 
Whitlock  V.  Horton,  Estate  for  Years 
Joint-tenancy 


Whitlocke's  case.  Rent 

Powers 


Whitting  V.  Bcenway,  Right  to  Water 
Whittingham's  case.  Heir 

,   Life  Estate 

,  Estates  on  Condi- 
tion 

,  Escheat 

Whornileighton  v.  Burton,  Common 
Wicherley  v.  Wichcrley,  Jointure 

,  Powers 

Wicker  v.  Norris,  Franchises 
Wickham  v.  Wickham,  Life  Estate 


1575 

1284 

1761 

389 

273 

1474 

963 

1038 

1539 

2104 

1596 

1884 

1045 

1663 

793 

220 

95 

979 

228 

1405 

2309 

162 

2094 

434 

80 

1034 

2150 

2415 

351 

1241 

2084 

646 

1040 


TABLE    OF    CASEf. 


Ixr 


Wickham  v.  Wickham,  Trusts  §  ]  884 

Wigford  V.  Gill,  Right  to  Water  431 

Wigg  V.  Wigg,  Assets  45 

,  Heir  80 

,  Trusts  1920 

Wiggan    V.    Branthwaite,     Fran- 

chises 
Wigson  V.  Garrett,  Powers 
Wike's  case,  Trusts 
Wild  or  Wilde  v.  Minsterley,  Ease- 
ments 

V.  Wells,  Dower 

Wild's  case,  Mines 

,  Rent 

,  Estate  Tail 

Wildbore  v.  Rainsforth,  Tenancy  from 
Year  to  Year 

,  Estate  at  Suf- 
ferance 

Wilder  v.  Speer,  Rent 

Wilker  v.  Boddington,  Trusts 

V.  Kirby,  Ways 

Wilkes'  case.  Trusts 

Wilkes  V.  Holmes,  Powers 

Wilkins  v,  Perratt,  Life  Estate 

Wilkinson  v.  Colley,  Rent 

Wilkinson  v.  Colley,  Tenancy  from 
Year  to  Year 

V.  Malin,  Trusts 

V.  Moss,  Right  to  Pews 

■  V.  Nethersol,  Franchises 

V.  Parry,  Trusts 

V.    Spearman,    Joint-ten- 


660 

198G 
1824 

80 

1207 

101 

210 

978 

1571 

1599 

249 

1746 

102 

1729 

2003 

1032 

255 

1590 

1850 

493 

688 

1851 


ancy 
Willan  V. 


Willes  V. 
Willett  V 


2302 
2004 
1526 

228 


Lancaster,  Powers 

Willan,  Estate  for  Years 

Fletcher,  Rent 

Sandford,  Equitable  Estates  1603 
and  Whitewood's  case,  Estate 

for  Years 
V.  Winnel,  Mortgage 


1393 
2202 
196 
2227 
2094 
1819 
1226 


Williams  v.  Bartholomew,  Rent, 

V.  Bosanquet,  Mortgage 

V.  Burrell,  Powers 

V.  Carter,  Trusts 

V.  Chitty,  Jointure 

V.  Coade,  (10  Ves.  500)  not 

Coude,  Trusts         1788.  1805 
V.  Craddock,  Estate  for 

Years 

V.  Drewe,  Uses 

V.  Jekyll,  Life  Estate 

Uses 


V.  Kershaw,  Assets 
V.  Lambe,  Dower 
V.Lincoln,   (Bp.)    Next 

Avoidance 
V.  Macnamara,  Life  Estate 
V.  Morland,  Right  to  Water 
V.  Morris,  Easements 
V.  Nixon,  Trusts  1846. 


1476 
1661 
105] 
1625 

58 
1207 


127 

1040 

399 

525 

1914 

2022a 

2470 

,  Estate  Tail  after 

&c  1069 

Willie  V.  Mott,  Right  to  Pews  483 

October,  1846 — E  I 


Willingham  v.  Joyce,  Estate  for  Years 

Willion  V.  Berkley,  Next  Avoidance 
Estate  Tail 


,  Joint-tenancy 


1293 

128 

970 

2311 

1244 

1914 

955 

95 

915 

1733 

1782 

196 

357 

Willoughby  v.  Willoughby,  Trusts 

1740.  1821 
,  Mortgage    2250 


Willis  v.  Black,  Jointure 

v.  Hiscox,  Trusts 

v.  Martin,  Fee  Simple 

V,  Parkinson,  Commons 

•,  Copyholds 


V.  Shorral,  Trusts 
V.  Willis,  Trusts 


Willott  V.  Earle,  Rent 
Willoughby's  case.  Common 
Uses 


de  Broke  (Baron)  Digni- 
ties 

of  Parham,  (Baron)  Dig- 
nities 
Wills  V.  Palmer,  Uses 

V.  Slade,  Commons 

V.  Stradling,  Heir 

Wilson  V.  Allen,  Copyholds 

-  V.  Armorer,  Uses 

■  V.  Bagshaw,  Estate  for  Years 

-  V.  Carn,  Estate  for  Years 

-  V.  Chisholm,  Estate  for  Years 

■  V.  Clapham,  Trusts 
V.  Darlington,  (Ld.)  Assets 

•  V.  Davenport,  Rent 
,  Ex  parte.  Rent 

■  V.  Fielding,  Assets 
•,  Trusts 


V.  Harman,  Rent 
V.  Hoare,  Trusts 
V.  Mackreth,  Land 
V.  Major,  Land  and  Money 
•,  Trusts 


■  V.  Peto,  Right  to  Light,  &c, 
-  V.  Piggott,  Powers 

•  V.  Redman,  Tithes 

•  V.  Robinson,  Fee  Simple 

■  V.  Sewell,  Estate  for  Years 

■  V.  Smith,  Estate  for  Years 
V.  Willis,  Common 

-,  Copyholds 


Wilton  V.  Hardingham,  Franchises 
Winchelsea  (E.,)  v.  NorclifF,  Land  and 

Money 
Winchcombe  v.  Winchester  (Bp.,)  Next 

Avoidance 
Winchester   v.  Winton    (Bishop)   v. 
Knight,  Mines 
,  Copyholds 


Puleston,  Next  Avoid- 


•  V.  Owen,  Mortgage 

•  V.  Williams,  Waste 


Wincombe  v 

ance 

Windsor  v.   Canterbury    (Arclibp..) 
Advowsons 

■    v.  Glover,  Rent 

•    (Dean,    &c.)   v.  Gower    or 

Gover,  Franchises 
V.  Kinnersley,  Commons 


G16 

620 
1641 
95 
80 
895 
1641 
1299 
1299 
1284 
1760 
47 
196 
201 
42 
1723 
220 
1902 
87 
72 
1774 
474 
1991 
140 
958 
1497 
1288 
301 
860 
653 

78 

127 

98 

854 

127 

126 
172 

704 
95 


Ld.)  V.  Burry,  Estate  for  Years  1508 


Ixvi 


TABLE   OF    CASES. 


Windsor's  case,  Advowsons 
"Winged  v.  Lefebury,  Trusts 
Winn  or  Winne  v.  Bampton,  Estate 
for  Years 
■  V.  Ingilby,  Fixtures 


Winnington  v.  Foley,  Trusts 
Winnington's  case.  Estate  at  Will 
VVinstanley  v.  Lee,  Right  to  Light,  &c, 

449 
Winston  v.  Pinkney,  Rent 
Winter  v.  Brockwell,  Right  to  Light, 

&c. 
— ,  Easements 


125  Woodyer  v.  Haddon,  Way? 
1798  W^oolcomb  v.   Ouldridge,    Right 

I     Pews 
1294  Woolley  v.  Piatt,  Tithes 

24  W^oolmore  v.  Borrows,  Trusts 
1913,Woolridge  v.  Dovey,  Common 
1548  Woolton  v.  Salter,  Common 

IWooten  V.  Hele,  Estate  for  Years 
476  Wootton  v.  Shirt,  Rent 
169  W^orcester's  (Bp.)  case.  Franchises 

. . (Dean)  case,  Rent 

,    Estate 

Years 


to 


454 
520 


liolds 


,  Loveday  or  Lovedore,  Copy- 

,  Estate  for  Years 

Winter's  case.  Uses 

,  Estates  on  Condition 

Winterton  v.  Egremont  (Ld.,)  Copy- 
holds 
Wintle  V.  Carpenter,  Commons 

. ,  Copyholds 

Winton.     See  Winchester. 
W^iscot's  case.  Estate 

___ ,  Joint-tenancy 

Wiseman  v.  Cotton,  Tenures 

__ V.  Warrengcr  or  Warringcr, 

Rent 
Wiseman's  case.  Uses 
Witham's  case.  Trusts 
Witherington  v.  Banks,  Curtesy 
Withers  v.  Ischam,  Heir-looms 

V.  Pinchard,  Franchises 

W'ithncll  V.  Gartham    (6  T.  R.,  not 

Gratliam,  1  T.  R.,)  Powers 
Witter  V.  W^ittcr,  Trusts 
Wittingham.     See  Whittingham. 


840 
1363 
1696 
2199 


for 


Worgan  v.  Ryder,  Dower 
Worlcge    V.    Benbury,    Estate 


for 


Years 


V.  Kingswell,  Common 
Copyholds 


Worlcy's  case,  Common 
915  Worrall  v.  Harford,  Trusts 

95  Wortley  v.  Birkhead,  Mortgage 
915  Wrangham,  Ex  parte,  Franchises 
Wray  v.  Steele,  Trusts 

V.  Williams,  Dower 

: ,  Trusts 


1381 

2303 

753 


209 


Wien  V.  Kirton,  Trusts 
Wrenford  v.  Giles  or  Gyles, 

for  Years 


Estate 
1312. 


1636  Wright  v.  Atkins, 


Woadson  v.  Newton,  Common 
Wolferstan  v.  Lincoln  (Bp.,)  Advow- 
sons 
Wolstan  V.  Aston,  Trusts 
Wood  V.  Abrcy,  Copyliolds 

. V.  Arch,  Trusts 

•   V.  Ash,  Estate  for  Years 

V.  Clark,  Rent 

V.  Cox,  Trusts 

V.  Day,  Estate  for  Years 

_ —  V,  Gaynon,  Fixtures 

V.  Hawkshead,  Franchises 

V.  Ingersole,  Merger 

V.  Lake,  Easements 

. V.  Moreton  or  Morton,  Com- 


1710 

1097 

29 

647 

1975 

1886 

325 

122 
1720 

918 
1955 
1351 

238 

1111a 

1425 

20 

685 
2452 

524 


102 

488 
135 

1817 
305 
315 

1381 
210 
632 
177 

1323 
1209 

1400 

347 

897 

343 

1929 

2255 

721 

1783 

1176 

1738 

1918 

1518 
1771 
2002 


V.  Barlow,  Powers 

V.  Cartwright,  Estate  for  Years  1479 


-v. Howard,  Right  to  Water 

-  V.  Norwicii   (Bp.,)    Advow- 

sons 

-  V.  Pearson,  Uses     1659.  170 
,  Trusts 

-  V.  Picrson,  Estate  Tail 


403 


mon 
. V.  Nunn,  Rent 

V.  Shurley,  Jointure 

V.  Veal,  Ways 

Wood's  case.  Life  "Estate 
Woodhouse  v.  Hoskins,  Trusts 

__— V.  Paston,  Rent 

Woodland  v.  Mantel,  Copyholds 
Woodliffe  V.  Drury,  Uses 
Woodman  v.  Morel,  Trusts 
Woodmcston  v.  Walker,  Trusts 
Woods  V.  Woods,  Trusts 
Woodward    v.    Aston,    Estate 

Years 


334 


124 
1713 
1831 
991 
1943 
1943 
364 
76 
2202& 
255 
1659 
Years 
1284 
Wakcford,  Powers  2002 

Wright,  Land  and  Money  75 

,  Tithes  140 

,  Trusts  17&7a 

Wroot  V.  Fcnor,  Ancient  Demesne  936 


Proud,  Trusts 
Proud,  Trusts 
Rattray,  Right  of  Way 
Rose,  Land  and  Money 
Mortgage 


V.  Smith,Rcnt 

,  Uses 

Trevesant,  Estate 


V. 


for 


for 


Wrottesly  v.  Adams,  Estate  for  Years 
.  340  1311. 

246  Wyalt  v.  Harrison,  Easements 
1214  V.  Sharratt,  Trusts 

102  V.  Willis,  Trusts 

1027  Wych  V.  Meal,  Franchises 
1808 V.  Packington,  Trusts 

209  Wykham  v.  Wykham,  Powers 

806  Wyld  V.  ^^  ard.  Tithes 
1641  Wyndham's  case.  Rent 
1786  Wynn  or  Wynne  v.  Bampton,  Rent 

1 754  V.  C'ookcs,  Copyholds 

1776  V.  Hawkins,  Trusts 

Williams,  Dower 
1494 


Wyrly  Canal  Company,  Waters 


1493 

115.  500 

1879 

1879 

711 

1787« 

1993 

135 

159 

156 

896 

1774 

1176 

110 


TABLE     O  V    CASES. 


Xl 


vu 


Wythe  V.  Ilcnnikcr,  Assets  45 

Yallop,  Ex  parte,  7Vusts  1784 
Yarborough  v.  Bank  (England,)  Fran- 

chises  709 

Yard  v.  Ford,  Franchises  679 

Yarmouth  (.May.)  v.  Eaton,  Ways  102 

— ,   Waters  109 

Yate's  case,  Franchises  701 

Yates  V.  Been,  Estate  for  Years  1411 
— —  V.  Compton,  Powers                     1959t/ 

Yaxley  v.  Raincr,  Copyholds  793 

Yelverton  v,  Yelverton,  Uses  1611 

York  (D.)  V.  Eaton,  Trusts  1783 

' V.  Marsham,  Copyholds  831 


York  (D.)  V.  Stonp,  Join-tenancy  1^313 
Young  V.  Fowler,  Offices  544 

V.  Martin,  Trusts  1773 

V.  Spencer,  Waste  24G5 

V.  Stocl,  Offices  544 

V.  Waterpark,  Powers  204G 

and    Wright,    Estate    for    Yenrs 

1351 

Zouch  V.  Forsc,  Copyholds  787 

V.  Parsons,  Copyholds  884 

,  Estate  for  Years  1410 

•  V.  Wiljingalo,  Tenancy  from 

Year  to  Year             "  1594 
V.  Woolston,  Powers  1932 


^    r 


LAW 


OF 


REAL   PROPERTY. 


INTRODUCTION. 


§  1.  All  property  is  distinguished  into  Real  and  Personal.     Real  pro- 
perty comprehends  things  that  are  immovable,  and  personal  property  things_ 
which  are  movable  and  go  with  the  person. 

The  law  of  real  property  may  be  considered  under  these  five,  general 
heads  or  books,  namely  : 

Book  I.  Nature  of  Real  Property  in  General. 

Book  II.  The  Tenures  by  which  Things  Real  may  be  held. 

Book  III.  The  Estates  which  may  be  had  in  Things  Real. 

Book  IV.  The  Title  to  Things  Real. 

Book  V.  Injuries  to  Things  Real  and  their  Remedies. 

The  book  on  Tenures  relates  to  Corporeal  Hereditaments  only,  the  other 
book  relate  as  well  to  Incorporeal  as  Corporeal  Hereditaments. 


July,  1846.— 2 


BOOK  I. 
NATURE  OF  REAL  PROPERTY  IN  GENERAL. 


[  *2  ]  *Chap.  L 

distiyctiox  betaveex  realty  a>t)  perso!s"altt. 
Chap.  IL 

CORPOREAL  HEREDITAMEjrrS. 

Chap.  IIL 

incorporeal  hereditamext3. 


§  2.  All  real  property  is  comprehended  under  the  words  ''Lands,  tene- 
ments, and  hereditaments  ;"  lands,  as  the  subject-matter  on  which  the  Law 
of  Real  Property  is  founded  ;  tenements,  as  that  which  is  held  ;  and  here- 
,  ditamcnts,  as  that  which  is  inherited. 

The  word  "  lands'^  in  its  most  universal  acceptation  is  of  very  extensive 
import ;  it  lecrally  includes  not  only  castles  and  houses  which  rest  upon  it 
as  their  foundation,  but  also  all  things  belonging  to  or  connected  T\"ith  it,  as 
well  upwards  as  downwards,  as  mines,  water,  air,  and  all  other  things  even 
up  to  heaven,  according  to  the  maxim  cvjus  est  solum  ejus  est  usque  ad 
ca7?/?/2.(o) 

The  word  "tenements"  taken  in  its  most  comprehensive  sense  is  of  still 
wider  import,  comprehending  whatever  may  be  bolden,  provided  it  be  of  a 
permanent  nature,  whether  of  the  substantial  or  ideal  kind,  including  there- 
^_-,  fore  *»not  only  all  corporate  inheritances  which  are  or  may  be  holden, 
L  -'  but  also  all  inheritances  issuing  out  of  any  of  those  inheritances,  or  con- 
cerning, or  annexed  to  or  exercisable  within  the  same  ;"(6)  as  rents,  estovers, 
commons  or  other  profits  Avhatsoever  granted  out  of  land  ;  or  uses,  offices,  or 
dignities  which  concern  land,  wherein  a  man  hath  any  frank-tenement  or 
freehold,  and  whereof  he  is  seised  Z(t  de  libera  tenemcnto.{b)  Tenement, 
which  is  the  only  word  used  in  the  Statute  de  Bonis,  is  in  its  ordinary,  but 
limited  acceptation,  applied  to  houses  and  buildings. 

"  Hereditaments''  is  a  word  of  still  larger  extent  than  either  of  the  two 
preceding,  including  not  only  lands  and  tenements,  but  whatever  may  be 
inherited,  be  it  real,  personal,  or  mixed,  that  is  neither  land  nor  tenement, 
but  a  mere  movable  as  a  piece  of  furniture,  and  the  like.  Hereditaments 
are  distinguished  into  corporeal  and  incorporeal.  Corporeal  hereditaments 
are  such  as  affect   the    senses,  as  lands,  and  houses,  &c. ;    incorporeal 

(a)  Plowd.  313  ;  1  Inst.  4,  a;  2  Comm.  17.  (h)  1  Inst.  19,  b. 


REALTY     AND    PERSONALTY     DISTINGUISHED.  19 

hereditaments  such  as  are  not  the  objects  of  sense,  but  exist  in  the  mind 
'  only. 

The  nature  of  Real  Property  may  be  further  considered  under  these  three 
heads  or  chapters  :  1.  Distinction  between  Realty  and  Personalty.  2.  Cor- 
poreal Hereditaments.     3.  Incorporeal  Hereditaments. 


♦CHAPTER   I.  [*4] 

DISTIXCTIOX  BETWEEN  REALTY  AND  PERSOXALTY. 


Sect.  I. 
■  §  4.  The  devolution  of  realty  and  personalty. 

Sect.  II. 

§  30.  Liability  to  tele  pay^ient  of  debts. 

Sect.  III. 

§  60.  Reciprocal  conversion  of  realty  and  persona.lty. 

Sect.  IV. 
§  79.  Miscellaneous  matters  relating  to  realty  and  personalty. 


§  3.  Real  property  is  distinguished  from  personalty  in  different  ways  :  1. 
As  to  the  manner  of  its  devolving  ;  2.  As  to  its  Hability  to  the  debts  of  the 
owner ;  3.  As  to  the  reciprocal  conversion  of  one  into  the  other  ;  4.  Miscel- 
laneous matters. 


SECTION  I. 

THE  DEVOLL'TION  OF  REALTY  AND  PERSONALTY. 

§  4.  Chattels  real  and  personal. 
5.  What  goes  to  the  Heir,  and  what  to  the  Executor. 

I.  €l)attcls  iical. 

1.  Terms. 

7.   Cliattei   Interests   in  Lands   go  to  the  |  7.  Do  not  go  in  succession. 

Executor.  |  8.  Equitable  Interest  in  Terms. 

2.  Next  Presentation. 

9.  Next  Presentation  goes  to  Executor.         I  10.  Not  to  a  Successor. 
or  to  the  Heir.  I 


20 


crabb's   law    of    keal   property. 


[*5] 


*3.   Mortgages. 


§  11.  Legal  Estate  of  Mortgagees  in  Fee  I  §  11,  Mortgage  Money  goes  to  Executor, 
goes  to  Heir.  | 

4^  Bents. 


12.  Mode  of  reserving  Rent. 

So  as  to  carry  it  to  the  Heir. 

or  to  the  Executor. 

13.  Arrearages  of  Rent  goes  to  the  — 


13.  Executor  or  otherw'ise,  when. 

14.  Annuity  is  properly  personal 

Estate. 


II.  Cfjattiis  iDeisoual. 

15.  What  Chattels  Personal  go  to  the  Heir. 

1.  Heir-Looms. 


16.  What  they  are. 

Things    in    the    Nature    of    Heir- 
Looms. 


16.  Jewels,  «fec. 

Journals  of  the  House  of  Lords. 
Delivery  for  Inspection. 


2.  Fixtures. 


17.  Rule  as  to  Things  fixed  to  the  Free- 

hold. 

18.  Exceptions  to  the  Rule- 

19.  As  to  Heir  and  Executor. 

20.  Devisee  and  Executor. 

21.  Executcrs  of  Tenant  for  Life  and  Re- 

mainderman. 


23.  Landlord  and  Tenant. 

23.  Meaning  of  the  word  "  Fixtures." 

24.  As  between  Mortgagor  and  Mortgagee. 

In  Case  of  Distress. 

of  Execution. 
What  passes  in  the  Conveyance  of 
the  Freehold. 


3.   Trees  and  Emblements. 


25.  Trees  Parcel  of  the  Inheritance. 

26.  What  Timber  Trees  or  otherwise. 

27.  Rule  as  to  Windfalls. 


29.  Fish  in  a  Pond. 


28.  Fruit  of  Trees,  &c.  go  to  the  Heir. 
Emblements  go  to  tlie  Executor. 


4.  Certain  ..Animals. 

Deer,  &c.  in  a  Park. 


§  4.  Personalty  as  distinguished  from  realty  is  known  in  law  by  the  name 
of  chattels,  which  are  again  distinguished  into  real  and  personal.  Chattels 
real  are  terms  for  years  of  lands  and  tenements,  next  presentations,  mort- 
gages, estates  by  statute  staple,  statute  merchant,  and  elegit,  &c.  Chattels 
personal  are  cattle,  furniture,  money  and  the  like  movables.  Chattels  are 
likewise  distinguished  into  chattels  in  possession,  which  are  in  the  immediate 
-1  possession  of  the  person  ^entitled,  or  chattels  in  action,  technically 
L        J  called  choses  in  action,  which  must  be  recovered  by  suit. 

5.  By  the  common  law,  an  estate  of  freehold  or  inheritance,  not  being 
comprehended  under  the  word  chattels,  goes  to  the  heir,  but  chattels  on  the 
other  hand  regularly  go  to  the  executor ;  this  rule  however  both  as  to  chattels 
real  and  personal  admits  of  exceptions  and  modifications,  when  considered 


CHATTELSREAL.  21 

either  as  to  the  different  kinds  of  representatives,  as  to  landlord  and  tenant, 
or  assignees  in  bankruptcy,  &c.,  and  lastly  as  between  husband  and  wife. 


I.  ehattcls  Bral. 

6.  Of  chattels  real  which  commonly  go  to  the  executor  the  following  arc 
entitled  to  notice  :  1.  Terms ;  2.  Next  presentations  ;  3.  Mortgages ;  4. 
Rents  ;  5.  Annuities. 

1.   Terms. 

7.  All  leases  and  terms  of  lands,  tenements  and  hereditaments  which  give 
a  chattel  interest  only,  go  to  the  executor  or  administrator,  but  he  has  no 
interest  in  freehold  terms  or  leases,  therefore  a  term  for  one's  own  life  or  the 
life  of  another,  being  a  freehold,  goes  to  the  heir  and  not  to  the  executor,  but 
a  term  for  a  thousand  or  ever  so  many  more  years,  being  less  than  a  freehold, 
goes  to  the  executor,  and  not  to  the  heir.(o)(l )  So,  if  a  lease  for  years  be  made 
to  a  bishop,  parson  or  other  sole  corporation,  and  his  successors,  yet  it  will 
go  to  his  executor  or  administrator,  for  a  corporation  sole  cannot  take  a  chattel 
in  succession, (6)  for  succession  in  a  body  politic  is  the  same  as  inherit- 
ance of  a  private  person, (ft)  but  it  is  otherwise  in  case  of  a  corporation  aggre- 
gate of  many,  as  a  Dean  and  Chapter,  Mayor  and  Commonalty,  and  the 
like  ',(b)  so  of  a  sole  corporation  by  custom  as  the  Chamberlain  of  London  ;(i) 
so  in  the  case  of  the  queen. (6) 

*So,  a  limitation  of  a  term  for  years  to  one  in  tail,  vests  the  whole  p  *«  -i 
in  the  first  taker,  and  the  same  shall  go  to  his  executors,  and  not  to  L  J 
the  heir.(c)  So,  a  grant  from  the  Crown  of  "the  year,  day,  and  waste" 
though  made  to  one  and  his  heirs,  yet,  being  but  a  chattel,  goes  to  the  exe- 
cutor ;(f/)  so,  in  the  case  of  a  tenancy  from  year  to  year  as  long  as  both 
parties  please,  the  interest  of  the  tenant  goes  to  his  executor  or  administra- 
tor,(e)  or  to  a  devisee  ;(y )  but  where  a  lease  is  made  to  several  for  a  term 
of  years  as  joint  tenants,  and  one  dies,  his  interest  survives,  and  his  personal 
representatives  take  nothing.(g-)(2) 

8.  As  a  rule,  courts  of  equity  follow  the  law  in  their  construction  of  chattel 
interests,  to  which  a  person  may  be  equitably  entitled,  but  terms  to  attend 

(a)  1  Inst.  4G,  a.  {h)  Ful  wood's  case,  4  Co.  65. 

(f)  Leonard  Lovie's  case,  10  Co.  87  a,  88  b ;  but  see  Burgis  v.  Burgis,  1  Mod.  115; 
Duke  of  Norfolk's  case,  3  Cha.  Cn.  .30  ;  Fearne  Cent.  Rem.  463  ;  2  Swaiist.  454;  sec  also 
Theebridge  v.  Kilburne,  2  Vez.  233 ;  Garth  v.  Baldwyn,  Id.  646. 

(ti)  Wentw.  Off.  Ex.  132,  s.  36.  (e)  Doe  v.  Porter,  3  T.  R.  13. 

(/)  James  v.  Dean,  11  Ves.  303.  (i?)  1  Inst.  182,  a. 


(1)  Case  of  Gay,  5  Mass.  419.     Circcnster  v.  Hill,  1  N.  H.  350. 

(2)  In  Pennsylvania,  by  the  act  of  1812,  survivorship  as  an  incident  to  joint  tenancy  is 
taken  away  in  every  species  of  property,  except  in  the  case  of  a  trust.  This  act  applied 
to  estates  then  in  existence.  Bnmbaugh  v.  Id.,  11  Serg.  &  Kawle,  191.  This  law  is 
adopted  in  most  of  the  States  of  the  Union.    4  Kent  Com,  361,  362. 


22  crabb's   law   ofreal   property. 

the  inheritance  form  an  exception  to  this  rule,  being  always  allowed  to  follow 
the  fee.  See  further  as  to  trust  terms,  post,  Equitable  Estates  ;  also  as 
to  estates  J!) ?«'  autre  vie^post  Estates  for  Life. 

2.  ^ext  Presentation. 

9.  An  advowson,  of  which  a  man  is  seised  in  fee,  goes  to  the  heir  and 
not  to  the  executor,  but  if  the  church  becomes  void  in  the  lifetime  of  the 
patron,  and  he  dies,  the  church  being  still  void,  the  next  presentation  goes  to 
the  executor  and  not  to  the  heir,  being  a  chattel  severed  from  the  inherit- 
ance.(/i)  So,  if  a  person  purchase  the  next  presentation  to  a  church,  and  die 
before  it  becomes  void,  this,  as  a  chattel,  shall  go  to  the  executor,  and  not  to 

^  -,  the  heir  ;(i)  and  it  is  said  that  the  next  presentation  before  the  church 
L  J  *becomes  void,  is  a  chattel  real,  and,  after  it  becomes  void,  a  chattel 
personal ;(«')  so,  if  there  be  tenant  in  tail,  and  the  church  happen  to  become 
vacant  in  his  lifetime,  and  he  die  before  he  has  presented,  his  executor,  and 
not  the  issue  in  tail,  shall  present  to  his  turn  •,{k)  so,  if  a  vicarage  happen  to 
become  void,  and  before  the  parson  present,  he  is  made  a  bishop,  &c.,  yet 
he  shall  present  to  his  turn,  because  it  is  a  chattel  vested  in  him  ;(/)  but  if  a 
man,  seised  in  fee  of  an  advowson,  be  parson  of  the  church  and  die,  his  heir, 
and  not  his  executor,  shall  present,  for  the  descent  to  the  heir  and  the  fall  of 
an  avoidance  happened  at  one  instant,  and  where  two  titles  concur  in  one 
instant,  the  elder  right  shall  be  preferred  ;(m)  and  the  grant  of  the  next  pre- 
sentation of  a  hving  to  J.  S.  during  his  hfe  is  Hmited,  and  will  not  carry 
the  presentation  to  his  executors  on  his  dying  before  the  church  becomes 
vacant.  (?i) 

10.  A  chattel  does  not  go  to  the  successor  of  a  corporation  sole.(o)  There- 
fore, where  a  prebendary,  having  the  advowson  of  a  rectory  in  right  of  his 
prebend,  died  while  the  church  was  vacant,  held,  that  his  personal  repre- 
sentative had  the  right  of  presentation  for  that  turn  ;(/))  but  where  a  bishop 
dies,  during  the  vacancy  of  a  church  of  which  he  is  patron,  it  is  laid  down 
that  neither  the  bishop's  executors,  nor  his  successor,  shall  have  the  turn 
but  the  queen,  by  reason  of  the  temporalities. ((j') 

11.  When  a  mortgage  is  in  fee,  the  legal  estate  will  go  to  the  heir,  and 
by  a  devise  of  all  lands,  lands  which  the  testator  had  in  mortgage  were  held 

j^_  -l  to  pass  ;(r)  but  if  the  *mortgage  is  for  a  term  of  years,  it  will  go  to 
L  -■  the  executor,  as  other  terms.  It  was  also  held,  in  some  of  the  earlier 
cases,  that  the  mortgage-money  should  go  to  the  heir,  if  the  personal  assets 

Qi)  Stephens  v.  Wall,  Dy.  982,  b  ;  Br.  Ab.,  tit.  Present,  al  Esglise  ;  Fitzherb.  Present. 
Ji  I'Esglises,  7  ;  F.  N.  B.  33,  34 ;  1  Inst.  388,  a ;  R.  v.  Canterbury  (Archbp.),  4  Leon.  198 ; 
Repington  v.  Tamworth  School,  2  Wils.  150  ;  all  recognised  in  Rennell  v.  Lincoln  (Bp.), 
7  B.  &.  C.  147.  (i)  Wentw.  Off.  Ex.  54. 

ik)  F.  N.  B.  33.  (Z)  Id.  34. 

(m)  Holt  V.  Winchester  (Bp.),  3  Lev.  47. 

(n)  Mann  v.  Bristol  (Bp.),  Cro.  Car.  505  ;  S.  C,  W.  Jo.  407. 

(o)  See  ante,  §  7.  (  p)  Rennell  v.  Lincoln  (Bp.),  7  B.  &  C.  113. 

(V)  Brook's  Abr.  tit.  Present,  al  EsgUse,  10  ;  F.  N.  B.  33 ;  1  Inst.  90,  a,  Harg.  n.  (4) ; 
2  Roll.  Abr.  345. 

(r)  Sir  T.  Littleton's  case,  2  Vent.  351  ;  S.  C.  nom.  Winn  v.  Littleton,  2  Chan.  Ca.  51 ; 
S.  C,  1  Vcrn.  3. 


CHATTELS    REAL.  23 

were  sufficient  for  the  payment  of  the  debts  :(.s)  but  it  is  now  settled  by  a 
series  of  decisions  that  the  executor,  and  not  the  heir,  is  entitled  to  the 
money ;(/)  and  the  heir  or  devisee  of  the  mortgagee  will  be  a  trustee  for  the 
personal  representative,  and  will  be  directed  to  convey  tohim;(M)(l)  but  the 
heir  may,  if  he  chooses,  pay  off  the  mortgage,  and  keep  the  land  ;(a?)  and  a 
mortgagee  may  by  any  declaration  in  his  will  convert  the  money  into  land 
for  the  benefit  of  his  heir;(?/)  and  the  devise  of  a  mortgage  estate,  consider- 
ed as  irredeemable,  will  pass  to  the  devisee,  as  land.(^) 

4.  Rent. 

12.  If  a  man,  seised  in  fee,  make  a  lease  reserving  rent  generally,  without 
saying  to  whom,  it  shall  go  to  his  heir  and  not  to  his  executor ;(«)  if  reserved 
to  him,  his  executors,  and  assigns,  the  rent  shall  determine  at  his  death,  be- 
cause, rent  being  incident  to  the  reversion,  cannot  go  to  the  executors  ;(6)(2) 
yet,  if  the  words  "  during  the  term"  be  added  in  such  a  lease,  it  has  been 
held  that  these  Avords  are  sufficient  to  carry  the  rent  to  the  heir  ;(c)  but,  ia 
the  report  of  this  case,((Z)  it  is  laid  down,  that  the  construction  of  reservations 
ought  to  be  according  to  the  reason  and  *equity  of  the  thing;  and  p  #iq  -i 
therefore,  as,  on  the  one  hand,  if  a  tenant  in  fee  made  a  lease  reserv-  L  -^ 
ing  rent  to  him  and  his  executors,  the  rent  could  not  go  to  the  executors  ;  so, 
on  the  other  hand,  if  a  lessee,  for  one  hundred  years,  should  make  a  lease 
for  forty  years,  reserving  rent  to  him  and  his  heirs,  that  would  go  to  the  exe- 
cutor and  be  void  for  the  heir ;  so  if  tenant  in  tail  made  a  lease  reserving 
rent  to  him  and  his  heirs  generally,  yet  the  rent  would  go  to  the  issue  in  tail. 
But  where  a  lessee  for  three  lives  assigned  his  whole  estate,  reserving  a  rent 
to  him  and  his  executors,  held,  that  as  no  reversion  was  left  in  the  lessor,  his 
executors,  and  not  the  heir,  were  entitled  to  the  rent;(e)  so,  where  a  man 
seised  in  fee  of  one  acre,  and  possessed  of  another  acre  for  term  of  years, 
made  a  lease,  rendering  one  entire  rent,  whereby  the  reversion  of  one  acre 

(s)  Titley  v.  Egerton,  1  Chan.  Rep.  181  ;  S.  C,  2  Freem.  125,  citing  St,  John  v.  Ware- 
ham  ;  Turner  v.  Crane,  Id.  242 ;  Anon.  Nels.  162. 

(0  Thornborough  v.  Baker,  1  Chan.  Cas.  283  ;  Ellis  v.  Guavas,  2  Chan.  Cas.  50  ;  Winn 
V.  Littleton,  sup. ;  Canning  v.  Hicks,  2  Chan.  Cas.  187 ;  S.  C.  1  Vern.  412  ;  Paulett  v.  Att.- 
Gen.,  Hardr.  467.  469  ;  Weaver  v.  Maule,  2  R.  &  My.  97.  See  further  3  Swanst,  630,  and 
other  c9,sGs  tliGre  ciIgq 

(u)  Canning-  v.  Hicks,  sup. ;  Tabor  v.  Grover,  2  Vern.  367 ;  S.  C.  2  Freem.  227. 

(x)  Clerkson  v.  Bowyer,  2  Vern.  66.  {y)  Noys  v.  Mordaunt,  2  Vern.  581. 

(z)  Doe  V.  Parratt,  5  T,  R.  654.  (a)  1  Inst.  47,  a. 

(6)  lb. ;  2  Roll.  Abr.  450.  (c)  Sacheverell  v.  Froggatt,  2  Saund.  367. 

{d)  Nom.  Sacheverel  v.  Frogate,  1  Vent.  161. 

(e)  Jenison  v.  Lexington  (Lord),  1  P.  Wms.  555. 


(1)  That  a  mortgage  is  but  a  security  for  the  payment  of  the  debt  and  passes  as  an 
incident  thereto,  not  descending  to  the  heir,  or  considered  real  estate,  is  very  generally 
held.  Schuylill  v.  Thoburn,  7  Sergeant  &,  Rawle,  419.  Wentz  v.  Dehaven,  1  Id.  317. 
Craft  V.  Webster,  4  Rawle,  255.  Smith  v.  Dyer,  16  Mass.  18,  particularly  under  their 
local  statute  ;  Dewey  v.  Dewsen,  4  Pick.  1 6.  Even  in  courts  of  law  where  the  jurisdic- 
tion  is  separated.  Norton  v.  Willard,  4  Johns.  41.  Runyan  v.  Merseran,  11  John.  534. 
Jackson  v.  Barclay,  5  Cow.  202.  In  case  of  possession  taken  by  the  mortgagee,  the  doc- 
trine of  a  trust  in  the  heir  would  be  applicable.     4  Kent  Com.  1 60. 

(2)  It  accompanies  the  reversion,  unless  separated  by  express  words,  Jolinson  v.  Smith, 
3  Penna.  500,  Burden  v.  Thayer,  3  Met.  78 ;  to  the  heir,  Wright  v.  Williams,  5  Cow.  501, 
or  devisee,  Prevost  v.  Colder,  3  Wend.  517. 


24         crabb's  law  of  real  property. 

would  o-o  to  the  heir,  and  of  the  other  to  his  executors,  held  that  the  rent 
should  be  apportioned  between  the  heir  and  the  executor.(/) 

13.  But  although  rent  be  incident  to  the  reversion,  and  shall  go  therewith, 
and  be  pa5^able  to  the  heir,  yet  the  arrearages  incurred  and  become  payable 
in  the  lifetime  of  the  lessor,  shall  go  to  the  executor  as  part  of  his  personal 
estate  •,{g)  therefore,  if  a  person,  seised  in  fee,  leased  for  years,  reserving 
rent  payable  on  certain  days,  if  he  died  after  either  of  the  rent-days,  all  the 
rent  due  at  the  last  rent-day  would  go  to  his  executor  ;(A)  but  if  he  died 
before  the  day,  then  the  rent,  which  would  accrue  due  on  that  day,  would 
go  to  the  heir,(z)  or  to  the  devisee  to  whom  the  reversion  was  devised  ;(A:)(1) 

jjj  -,  or  to  a  jointress, (/)  or  to  a  *remainderman  where  a  lessor  was  tenant 
L  -' for  life. (?n)  If  the  lessor  died  on  the  rent-day  after  sunset,  and 
before  mid-night,  the  heir,  it  seems,  and  not  the  executor,  should  have  the 
rent,  for  it  was  held  not  to  be  due  until  the  utmost  limit  of  the  day,  which 
does  not  end  until  twelve  o'clock,  although  the  time  for  demanding  it  be,  for 
conveniency,  any  time  before  the  sun  sets.(n) 

5.  ^^nmnlks. 

14.  An  annuity,  so  far  as  it  charges  the  person  only,  and  does  not  concern 
the  land  or  savour  of  the  realty,  is  a  personal  thing,(o)  but,  being  an  inherit- 
ance, cannot  go  to  the  personal  representative. (p) 


II.  oruattcls  personal. 

15.  The  exceptions  to  the  rule,  that  chattels  go  to  the  executor,  are  more 
numerous  in  the  case  of  chattels  personal  than  in  that  of  chattels  real,  either 
in  favour  of  the  heir  or  of  the  freehold,  as  between  real  and  personal  repre- 
sentatives, landlord  and  tenant  or  assignees  in  bankruptcy,  &c.  These 
exceptions  may  be  considered  under  the  following  heads  : — 1.  Heir-looms  ; 
2.  Fixtures ;  3  Emblements  ;  4.  Certain  Animals. 

(/)  Moodic  V.  Garnance,  3  Bulstr.  153 ;  S.  C.  nom.  Moody  v.  Garnon,  Moore,  848;  S. 
C.  nom.  Wood  v.  Germons,  Cro,  Jac.  390,  in  which  two  latter  cases  no  decision  on  this 
point  is  reported. 

{g)  Off.  Ex.  53,  54 ;  Godolph.,  part  2,  c.  13,  s.  3.  (A)  Clun's  case,  10  Co.  128. 

(i)  Anon.  34  H.  8,  cited  in  Clun's  case,  sup. ;  S.  C.  Clun  v.  Fisher,  Cro.  Jac.  309  ;  S.  P. 
Drowt's  case,  Moore,  726,  pi.  1012.  (A)  Sacheverel  v.  Frogate,  1  Vent.  148. 161. 

(Z)  Rockingliam  (Lord)  v.  Oxenden,  2  Salk.  578 ;  S.  C.  nom.  Rockingham  fLord)  v. 
Penrice,  1  P.  Wms.  177. 

(?«)  Strafford  (Earl)  v.  Wentworth  (Lady),  Prcc.  Chan.  555. 

(n)  Duppa  V.  Mayo,  1  Saund.  287.  And  see  Plowd.  172, 173  ;  1  Inst.  202 ;  Clun's  case, 
sup. ;  Cro.  El.  575 ;  Rockingham  (Lord)  v.  Oxenden  or  Penrice,  sup.  See  also,  contra, 
Strafford  (Earl)  v.  Wentwortli  (Lady),  sup.,  and  the  distinction  taken  between  a  common 
lease,  and  a  lease  under  a  power. 

(o)  1  Inst.  20.  (/?)  Doct.  and  Stud.  c.  30,  p.  97.    See  further,  post,  §  259  ct  seq. 


(1)  It  cannot  be  apportioned  as  to  time,  Bank  v.  Wise,  3  W.  404,  ante  9,  n.  2,  even 
though  the  lease  terminate  by  condition,  Zulc  v.  Id.  24  Wend.  7G  ;  Fitchburg  v.  Melven, 
15  IVIass.  268 ;  but  this  is  altered  in  the  case  of  a  decedent  in  Pennsylvania  by  act  of  1834. 
Sec.  7. 


CHATTELSPERSONAL.  25 

1.  Heir-Looms. 

16.  Heir-looms  are  such  goods  and  chattels  as  go  by  special  custom  to  the 
heir  along  with  the  inheritance,  and  not  to  the  executor  or  administrator  of 
the  last  owner  of  the  *estate,  and  are  said  to  be  the  best  thing  of  ^,  -, 
every  sort,  as  of  beds,  tables,  pots,  pans,  carts,  and  other  movables. (5')  L  -^ 
They  are  due  by  custom  and  not  by  the  common  law,  and  the  heir  may  have 
an  action  for  them  and  shall  not  sue  for  them  in  the  Ecclesiastical  Court ; 
but  they  are  not  devisable. (r) 

There  are,  besides,  other  things  in  the  nature  of  heir-looms,  as  monuments, 
coat-armour,  pennons,  and  other  ensigns  of  honour  which  belong  to  a  man's 
degree  or  order,  and  are  usually  set  up  in  the  church ;  and  although  the 
freehold  of  the  church  be  in  the  parson,  yet  he  cannot  deface  or  remove  these 
things,  but  the  heir  may  have  an  action  against  him  for  so  doing  ;(s)  so,  on 
the  same  principle  the  ornaments  of  the  chapel  of  a  bishop,  though  he  is  a 
corporation  sole,(f)  shall  nevertheless  go  to  his  successor,  as  an  heir-loom  \{it^ 
and  this  rule  is  said  to  apply  to  such  things,  belonging  to  a  parsonage,  as 
have  gone  from  successor  to  successor  ',{x\  but  the  property  in  the  shroud 
and  coffin  belongs  to  the  executor  err  administrator,  and  may  be  laid  to  be 
theirs  in  an  indictment  for  stealing  them. (3/) 

So,  although  a  man  devise  all  his  jewels,  &c.  to  his  wife,  yet  his  garter 
and  collar  of  S.  S.  shall  go  to  his  heir,  in  the  way  of  heir-looms. (;^)  And  it 
seems  that  on  the  same  principle  the  journals  of  the  House  of  Lords,  deli- 
vered to  a  peer,  should  go  with  the  title. (o)  So,  the  Court  of  Chancery  has 
power  to  compel  the  delivery  of  chattels  personal  in  the  nature  of  heir-looms  ; 
and  on  motion  the  plaintiff  was  allowed  the  inspection  of  the  articles  which 
he  claimed  in  a  chest  at  the  defendant's  bankers,  though  in  his  answer  he 
insisted  on  alien.(6)(l) 

*2.  Fixtures.  [  *13  J 

17.  It  is  a  rule  that  things  fixed  to  the  freehold  become  parcel  thereof,  and 
go  to  the  heir,  not  to  the  executor  ;(c)  therefore,  if  a  tenant  affixed  anything, 
he  could  not  on  his  quitting  remove  it  ;(rf)  so  goods  and  chattels  annexed  to 
the  freehold  go  to  the  heir  and  not  to  the  executor,  as  glass  in  a  window, 
doors  and  locks  of  a  house,  &c.  ;(e)  so  pictures,  glasses,  &c.,  fixed  instead  of 
wainscoat.(/) 

(9)  Bro.  Discent,  pi.  43  ;  1  Inst.  18,  b.  (r)  1  Inst.  185,  b. 

(s)  lb. ;  Frances  v.  Ley,  Cro.  Jac.  367.  {t)  See  ante,  §  7. 

(m)  Corwen's  case,  12  Co.  105.  {x)  4  Burn's  Ecc.  L.  413,  Phil.  cd. 

(y)  2  Russell  on  Crimes,  142.  («)  Earl  of  Northumberland's  case,  0\v.  124. 

((7)  Upton  V.  Ferrers  (Lord),  5  Ves.  806,  scd  quaere. 

(6)  Macclesfield  (Earl)  v.  Davis,  3  V.  &  B.  16. 

(c)  21  H.  7,  26,  27  ;  Keilw.  88  ;  Roll.  Abr.  919  ;  OfF.  Ex.  62  ;  Ow.  70,  71. 

Id)  Cooke's  case,  Moore,  177.  (c)  Herlakenden's  case,  4  Co.  63. 

(/)  Cave  V.  Cave,  2  Vern.  508. 


(1)  In  Maryland,  ^ct/--?oo/ns  are  expressly  excepted  from  the  operation  of  the  statute, 
1798,  ch.  7,  s.  1,  which  g-ives  to  executors  thingrs  annexed  to  the  freehold  which  may  be 
removed  without  prejudice,  &.c.    Laws  of  Maryland,  vol.  1,  p.  389. 


26        crabb's  law  of  real  property. 

18.  This  rule,  though  relaxed,  as  between  the  personal  representatives  of 
tenant  for  life  or  of  tenant  in  tail  and  the  remaiiiderman,  and  still  more  so  as 
between  landlord  and  tenant,  is  adhered  to  with  considerable  strictness,  as 
between  the  heir  or  devisee  of  tenant  in  fee  and.  the  executor  ;  but  even  here 
there  have  been  some  instances  of  relaxation,  and  therefore  it  will  be  neces- 
sary to  consider  each  of  these  cases  in  their  order. 

1 9.  First,  as  between  heir  and  executor,  a  distinction  has  been  taken  be- 
tween things  accessary  to  the  carrying  on  trade,  or  essential  to  the  enjoying 
of  the  inheritance  ;(^)  therefore,  in  a  case  before  Lord  C.  B.  Corny ns  cited 
in  Lawton  v.  Lawton,(^)(l)  a  cider-mill  though  affixed  to  the  freehold,  was 
held  to  go  to  the  executor  and  not  to  the  heir ;  but  in  Lawton  v.  Salmon, 
cited  in  Fitzherbert  v.  Shaw,(i)  which  was  a  case  of  salt-pans  erected  by  the 
tenant  in  fee,  and  used  in  the  salt  works,  they  were  held  to  go  to  the  heir, 
and  not  to  the  executor,  because  they  were  necessary  to  the  enjoyment  of 
the  inheritance.  Again,  a  distinction  has  been  taken,  grounded  on  the  cus- 
r  *ii  1  ^^"^  °^  ^^^  country  ;(A;)  and  also  whether  they  are  *fixtures  set  up 
L  -J  merely  for  domestic  convenience,(Z)  so  determined,  says  the  report, 
contrary  to  Herlakenden's  case  ;(m)  aitd  so  in  Beck  v.  Rebow,(n)  hangings 
and  looking-glasses,  being  mere  matters  of  ornament,  were  taken  not  to  be 
part  of  the  house  or  freehold  ;  and  a  similar  decision  was  come  to  in  Harvey 
v.  Harvey, (o)  as  to  hangings,  tapestry,  and  iron  backs  to  chimneys  ;  but  in 
Winn  v.  Ingilby,(;))  set-pots,  stoves,  grates,  coppers,  and  other  things  which 
could  not  be  removed  without  doing  injury  to  the  freehold,  were  held  to  go 
to  the  heir,  and  not  to  the  executor. 

20.  A  devisee  differs  from  an  heir  no  further  than  as  his  claims  may  be 
affected  by  the  terms  of  the  will,  and  the  presumed  intention  of  the  testator  ; 
therefore,  where  the  devise  was  of  a  copyhold  estate,  consisting,  inter  alia, 
of  a  brewhouse  and  malthouse,  with  the  plant  and  utensils,  held  that  the  plant 
passed  with  the  brewhouse,  as  the  latter  would  have  been  of  no  use  without 
it  ;(</)  so,  by  a  devise  of  a  West  India  plantation,  the  stock,  implements, 
utensils,  &c.  will  pass.(r) 

2L  As  between  the  executors  of  tenant  for  life  and  remainderman,  it  has 
been  held  in  two  cases,  that  an  engine  set  up  for  the  benefit  of  a  colliery  and 
the  increase  of  trade,  should  go  to  the  executor,  and  not  to  the  remainder- 
man, (s)  (2) 

is)  Elvves  V.  Maw,  3  East,  53.  (A)  3  Atk.  15.  (i)  1  H.  Bl.  259. 

(A-)  Vin.  Abr.  tit.  "  Executors,"  (U.  74.) 

(/)  Squire  v.  Mayer,  2  Eq.  Cas.  Abr.  430 ;  S.  C.  2  Freem.  249. 
(m)  4  Co.  63.  (n)  1  P.  Wms.  94.  (o)  2  Str.  1141. 

( p)  5  B.  &  A.  625  ;  Colcgrave  v.  Dias  Santos,  2  B.  &,  C.  76 ;  King  v.  St.  Dunstan,  4  B. 
&  C.  686  ;  S.  C.  7  D.  &,  R.  178. 

(q)  Wood  V.  Gaynon,  Ambl.  395.  (r)  Lushington  v.  Sewell,  1  Sim.  435. 

(5)  Lawton  v.  Lawton,  3  Atk.  13  ;  Dudley  (Lord)  v.  Ward  (Lord),  Ambl.  113. 

(1)  Holmes  v.  Tremper,  20  Johns.  29. 

(2)  The  remainderman's  right  will  pot  be  affected  by  an  agreement  between  the  tenant 
for  life  and  the  termor,  in  the  case  of  an  erection  of  frame  shops  and  a  stable.  White  v. 
Arndt,  1  Wh.  9.  Nor  can  the  latter  remove,  after  the  termination  of  his  term  by  the  death 
of  his  lessor.  Id. 


CHATTELSPERSONAL.  27 

22.  As  between  landlord  and  tenant  the  rule  has  been  relaxed  very  con- 
siderably in  favour  of  the  latter ;  a  tenant  may  therefore  now  remove  any 
buildings  which  have  been  *erected  by  himself  for  the  purposes  of  ^  ,  _  -, 
trade, (/)  particularly  if  erected  upon  blocks,  and  not  fixed  in  or  to  L  -^ 
the  ground, (?/)  provided  he  removes  them  before  the  expiration  of  the  term  ;(a^) 
or  during  such  further  period  of  possession  by  the  tenant,  as  he  holds  under 
a  right  to  consider  himself  as  tenant  ;(y)  but  in  Elvves  v.  Maw, (2)  it  was 
held  that  the  exception  in  favour  of  the  tenant,  with  regard  to  trade  fixtures, 
did  not  extend  to  buildings  erected  for  the  purposes  of  agriculture  ;(1)  there- 
fore, where  a  tenant  in  agriculture  erected  a  beast-house  and  other  buildings 
which  were  let  into  the  ground,  held,  that  he  could  not  remove  the  same, 
though  during  his  term,  and  he  left  the  premises  in  the  same  state  as  when 
he  entered.  But  even  agricultural  buildings  may  be  so  erected  as  to  fall 
within  the  exception  ;  therefore,  where  a  tenant  removed  the  soil  of  the 
demised  land,  and  placed  therein  stone  staddles,  in  some  places  with  a  brick 
foundation,  and  erected  upon  the  staddles  a  thatched  wooden  barn,  which 
was  kept  in  its  place  upon  the  staddles  by  the  pressure  of  the  superincum- 
bent weight  alone,  held,  that  he  might  remove  the  woodwork  and  thatch, 
but  not  the  foundation. («) 

23.  The  word  «  fixtures"  does  not  necessarily  imply  things  fixed  to  the 
freehold  ;(6)  therefore,  window  sashes  neither  hung  nor  beaded  into  the 
frames,  but  merely  fastened  by  laths  nailed  across  the  frames,  have  been 
held  not  *to  be  fixed  to  the  freehold  ;(c)  so,  a  pump  being  an  article  ^  -, 
of  domestic  use,  erected  so  as  to  be  removable  without  injury  to  the  L 
freehold  ;(rf)  so,  a  cornice  fixed  up  by  screws  ;(e)  so  an  ornamental  chimney- 
piece  ;(/)  sed  secus  if  the  chimney-piece  be  not  ornamental,  and  also  if  the 
pillars  of  brick  and  mortar  be  built  on  a  dairy  floor,  although  not  let  into  the 
ground  ;(/)  and  if  the  erection  be  let  into  the  ground,  or  cemented,  or  other- 
wise united  to  any  erection,  that  is  let  into  the  ground,  it  cannot  afterwards 
be  removed,  although  it  be  merely  for  ornament ;  therefore  a  conservatory 

(t)  Penton  v.  Robart,  2  East,  88.     See  also  Poole's  case,  1  Salk.  368. 

(m)  Culling  V.  Tuffiiell,  Bull.  N.  P.  34,  cited  Elwes  v.  Maw,  3  East,  41 ;  Dean  v.  Allal- 
ey,  3Esp.  N.  P.  C.  11. 

(x)  20  H.  7,  13,  cited  in  Elwes  v.  Maw,  sup. ;  Fitzherbert  v.  Shaw,  1  H.  Bl.  258,  recog- 
nised in  Lvde  v.  Russell,  1  B.  &  Ad.  394  ;  Marshall  v.  Lloyd,  2  M.  &  W.  450. 

(v)  Weeton  v.  Woodcock,  1  M.  &.  W.  19,  recoffnising  Marshall  v.  Llo}'d,  sup.  See 
also  Mackintosh  v.  Trotter,  3  M.  &  W.  184 ;  Lee  v.  Risden,  7  Taunt.  188.  (2)  Sup. 

(a)  Wansborough  v.  Maton,  4  Ad.  &  Ell.  884 ;  S.  C.  6  Nev.  &  Man.  367  ;  S.  C.  2  Har. 
&  Wol.  37,  recognising  R.  v.  Otley,  1  B.  &  Ad.  161. 

(fe)  Sheen  v.  Rickie,  5  M.  &  W.  175. 

(c)  R.  V.  Hedges,  1  Leach,  C.  C.  201 ;  2  East,  P.  C.  590,  n. 

(d)  Grymes  v.  Boweren,  6  Bing.  437  ;  S.  C,  4  M.  &  P.  143. 

(e)  Avery  v.  Cheslyn,  3  Ad.  &  Ell.  75  ;  S.  C.  5  Ncv.  &  M.  372 ;  S.  C,  1  Har.  &  Wol. 
283.  (/ )  Leach  v.  Thomas,  7  C.  &  P.  328. 


(1)  Tenant  for  years  erecting  a  brick  house  and  cellar  used  for  a  dairy,  and  residing 
with  his  family  in  the  upper  part  of  the  house,  permitted  to  remove ;  the  question  whether 
it  was  for  purposes  of  trade  being  the  only  one,  and  the  principle  of  Elwes  v.  Maw,  exclud- 
ing  fixtures  for  agricultural  purposes,  considered  inapplicable,  Van  Ness  v.  Picard,  2 
Pet.  137-46  ;  and  in  Troup  v.  Smith,  20  John.  29,  the  same  principle  is  ruled  in  case  of  a 
cider  mill,  however  it  may  be  annexed  to  the  ground,  p.  32  :  and  it  is  said  though  the 
tenant  would  be  a  trespasser  for  entering  after  the  determination  of  the  terra,  yet  the 
property  in  the  mill  would  not  pass  to  the  landlord. 


28  CRABB's  LAW  OF  REAL  PROPERTY. 

which  was  attached  to  a  dwelling  house  by  means  of  cantilevers  let  into  the 
wall,  was  held  to  be  so  annexed  to  the  freehold,  that  the  removal  of  it  was 
considered  waste. (g")  And  a  question,  whether  a  fixture  can  be  removed  by 
a  tenant  without  substantial  injury  to  the  freehold,  is  proper  for  a  jury,  upon 
an  issue  whether  it  is  removable  by  law.(A) 

24.  The  principle  that  things  fixed  to  the  freehold  cannot  be  removed 
but  must  go  therewith  has  been  adhered  to  in  other  cases,  as  between  mort- 
gagor and  mortgagee,  in  cases  of  distress  or  execution,  or  bankruptcy,  as 
also  on  the  conveyance  of  the  freehold. (1)  As  between  a  mortgagor  and 
mortgagee,  the  former  is  to  many  intents  considered  as  tenant  to  the  latter, 
or  may  be  so  treated  by  him  at  his  election  ;(i)  therefore,  where  a  mortga- 
gor became  bankrupt,  held,  that  his  assigns  could  not  remove  the  fixtures 
from  the  premises,  whereby  they  should  become  dilapidated. (A:) 

Things  such  as  coppers,  grates,  &c.  which,  under  circumstances,  may  be 
r  *i7  -|  removable  by  a  tenant,  are  nevertheless,  *not  to  be  distrained  ;(/)  but 
I-  -*  it  is  doubtful  whether  machinery  fixed  by  bolts  to  a  floor,  is  distrain- 

able,(m)  and  in  an  early  case  it  was  decided  that  although  a  stone  was 
severed  from  a  mill  for  the  purpose  of  being  picked,  yet  it  remained  notwith- 
standing parcel  of  the  mill,  and  could  not  be  distrained, (n)  sed  secus  if  it 
were  another  stone  lying  loosely  by.(n)  Things  wrongfully  severed  by  a 
tenant,  as  machinery  belonging  to  a  mill,  cannot  be  taken  in  execution,  under 
a  Jr.  fa.  ;(o)  and  before  the  late  Acts  making  all  real  property  liable  to  the 
debts  of  the  owner,  particularly  the  1  &■  2  Vict.  c.  Il0,{p)  a  dyer's  vat,  fas- 
tened to  the  wall  of  the  house,  could  not  be  taken  in  execution  under  a  Ji. 
fa.,{q)  so  set  pots,  ovens,  and  ranges  belonging  to  the  plaintiff's  freehold,  for 
as  these  would  go  to  the  heir  and  not  to  the  executor,  they  were  not  liable  as 

{g)  Buckland  v.  Butterfield,  2  B.  &.  B.  54 ;  S.  C.  4  B.  Moore,  440. 

(A)  Avery  v.  Clieslvn,  sup.  (i)  Partridge  v.  Bere,  5  B.  &  A.  604. 

(k)  Hitchman  v.  Walton,  4  M.  &  W.  409.  (/)  Danby  v.  Harris,  1  Gale  &  D.  234. 

(m)  Duck  V.  Braddyll,  M'Clel.  217;  S.  C.  13  Price,  459. 

(n)  M.  H.  8,  fo.  25,  pi.  6. 

(0)  Tarrant  v.  Thompson,  6  B.  &  A.  825  ;  S.  C,  2  D.  &  R.  1. 

Ip)  See  Dig.  P.  ii.  tit.  Execution,  1.  {q)  Day  v.  Bisbitch,  Cro.  El.  374. 


(1)  As  between  the  owner  of  the  land  and  tliird  persons,  fixtures  are  part  of  the  realty, 
and  can  only  be  sold  as  such.  Owes  v.  Ogilby,  7  W.  106.  They  will  pass  by  a  mortgage 
of  the  realty,  and  the  purchaser  under  it  is  entitled  against  a  purchaser  under  a  fi.  fa. 
Voorhees  v.  Freeman,  2  W.  &  S.  116.  Pyle  v.  Pennock,  id.  390.  Even  though  they  be 
parts  of  tlie  machinery  which  have  never  been  in  use,  id.,  provided  they  are  essential  to 
the  completeness  of  the  mill  as  such,  or  arc  kept  to  replace  injuries  by  breakage,  id. 
Gray  v.  Holdship,  17  S.  &  R.  415.  And  it  is  said  by  Gibson,  C.  J.  in  Voorhees  v.  Free- 
man, 119,  this  rule  prevails  between  vendor  and  vendee,  heir  and  executor,  debtor  and 
execution  creditor,  and  co-tenants  of  the  inheritance. 

But  in  Gale  v.  Ward,  14  Mass.  352,  the  carding  machines  in  a  wool  carding  factory 
were  considered  liable  as  other  personal  property  ;  and  the  same  point  was  held  in  Walker 
V.  Sherman,  20  Wend.  636,  in  the  case  of  a  partition.  In  these  cases,  physical  annexa- 
tion seemed  to  be  relied  on  as  the  test,  for  the  machines  had  passed  with  the  mill  under 
many  conveyances.  In  Farrar  v.  Stackpole,  6  Greenl.  155,  all  the  necessary  appendages 
to  a  mill,  without  regard  to  physical  annexation,  were  held  to  pass  by  a  conveyance  of 
the  mill. 

As  between  the  creditor  of  the  tenant  and  the  landlord,  it  seems  the  same  rule  prevails 
as  in  the  case  of  the  tenant  himself.     Lemar  v.  Miles,  2  W.  330. 

For  a  general  view  of  the  American  cases  on  this  point,  consult  Elwes  v.  Maw  in 
Smith's  Sel.  of  Leading  Cases,  n.  by  Am.  ed. 


CHATTELS    PERSONAL.  29 

goods  and  chattels  to  be  taken  in  execution  ;(r)  and  so  in  Steward  v. 
Lombe,(5)  where  a  close  on  which  a  windmill  was  erected,  was  mortgaged 
for  a  term  of  years,  and  in  the  same  deed  there  was  a  conveyance  of  the 
mill  to  the  mortgagee  in  fee,  held,  that  the  mill,  being  incident  to  the  land, 
could  not  be  taken  in  execution.  The  rule  has  also  been  applied  to  cases  of 
bankruptcy,  where  the  question  is,  what  is  in  the  order  and  disposition  of  a 
bankrupt  so  as  to  pass  to  his  assignees,  it  being  held  that  as  goods  and  chat- 
tels are  the  only  property  mentioned  in  the  statute,  lands  and  fixtures  are 
not  affected  thereby  :{t)  therefore,  stills  and  other  things  affixed  to  the  free- 
hold, are  not  within  the  order  and  disposition  of  the  bankrupt  ;(w)  so,  r  *jg  -i 
*stoves,  grates,  and  other  things  legally  fixed  to  the  premises,  though  L 
removable  by  the  tenant,  are  nevertheless  held  to  be  not  in  the  order  and 
disposition  of  a  bankrupt  within  the  statute  ;{x)  so,  shares  in  a  bridge  com- 
pany have  been  held  not  to  pass  to  the  assignees,(2/)  sed  secies  as  to  such 
shares  where  by  the  Act  they  are  declared  to  be  personalty. (z) 

On  this  same  principle,  that  whatever  is  once  annexed  to  the  freehold 
cannot  be  severed,  fixtures  will  pass  in  a  conveyance  of  the  freehold  ;  there- 
fore where  the  owner  of  a  freehold  house,  in  which  there  were  various  fix- 
tures, sold  it  by  auction,  and  no  mention  was  made  of  the  fixtures,  held,  that 
they  passed  with  the  conveyance  of  the  house  ;(a)  and  by  a  mortgage  of  a 
mill,  the  stones,  tackling,  and  implements  necessary  for  the  working  of  the 
mill  pass  to  the  mortgagee  •,{b)  so,  Avhere  a  lessee  for  years  mortgaged  his 
estate  and  interest  in  the  premises,  held,  that  the  mortgagee  might  declare, 
as  reversioner,  against  the  assignee  of  the  tenant  for  the  removal  of  the  fix- 
tures ;(c)  but  in  Archer  v.  Bennett,(rf)  where  a  man  was  seised  of  a  close, 
on  one  part  whereof  was  a  house,  and  on  another  part  thereof  was  a  kiln, 
and  also  two  mills  adjoining  to  the  close,  and  he  sold  the  mills  mm pertinen- 
His,  held  that  the  kiln  and  the  part  of  the  close  whereon  it  stood,  did  not 
pass  ;  for,  by  the  grant  of  a  messuage  or  land  cr/m  pertinentiis,  any  other 
land  or  thing  will  not  pass  ;  but  it  seems  that  it  would  have  been  otherwise, 
if  it  had  been  shewn  that  the  kiln  was  necessary  for  the  use  of  the  mills. 

*3.  Trees  and  Emblements.  [  *19  ] 

25.  All  trees  are  parcel  of  the  inheritance  and  go  to  the  heir;  if,  therefore, 
a  man  convey  his  lands  by  bargain  and  sale,  and  all  trees  by  express  words, 

(r)  Winn  v.  Ingilby,  5  B.  &  A.  625. 

(s)  1  B.  &  B.  506  ;  4  J.  B.  Moore,  281. 

(0  Ryall  V.  Rowles,  2  Vcz.  348.  374 ;  S.  C,  nom.  Ryall  v.  Rolle,  1  Atk.  165;  1  Wils. 
260. 

(u)  Horn  v.  Baker,  9  East,  215,  recognised  in  Clarke  v.  Crownsliaw,  3  B.  &  Ad.  804, 
and  Coombs  v.  Beaumont,  5  B.  it  Ad.  72  ;  S.  C,  2  Nev.  &.  Man.  235.  ^    ^    oi  ^ 

{X)  Bovdcll  V.  M'Michael,  1  Cr.  I\I.  &  R.  177  ;  Ex  parte  Wilson,  4  Deac.  &.  C.  J14; 
Ex  parte  "Belcher,  Id.  703. 

(y)  Ex  parte  Vauxhall  Bridge  Company,  1  Gl.  &  J.  101.  o    r>    n^ 

(z)  Ex  parte  Lancaster  Canal  Company,  Mon.  116  ;  S.  C,  on  Appeal,  Mon.  &  B.  94  ; 
1  Deac.  cSi,  C.  411.  See  slso  Buckeridge  v.  Ingram,  2  Ves.  jun.  252,  where  a  share  m  the 
New  River  Company  was  held  to  be  realty,  there  being  no  provision  in  the  Act  to  make 
the  shares  personalty. 

(a)  Colcgrave  v.  Dios  Santos,  2  B.  &  C.  76 ;  S.  C.  3  D.  &  R.  255. 

(fc)  riace  v.  Fagg,  4  Man.  &  Ry.  277. 

(c)  Hitchman  v.  Walton,  sup.  {d)  1  Lev.  131. 


30         crabb's  law  of  real  property. 

and  the  lands  do  not  pass  for  want  of  inrolment  or  otherwise,  the  trees  do  not 
pass  ;(e)  and  if  a  man  lease  lands  for  Hfe  or  years  with  all  trees,  the  trees 
pass  only,  as  they  are  annexed  to  the  land,  and  the  lessee  shall  not  cut 
them  ;(y )  but,  if  a  man  grants  all  his  trees,  they  are  absolutely  seised  in  law 
and  passed  away  from  the  grantor  and  his  heirs,  and  being  vested  as  chattels 
in  the  grantee,  pass  to  his  executors  •,[g'\  yet,  though  the  soil  itself  does  not 
pass,  a  sufficient  nutriment  out  of  the  earth,  for  the  vegetation  of  the  trees  is 
granted  ;(^)  so  if  a  man  sells  his  land  reserving  the  timber  trees,  they  remain 
as  a  chattel  in  him,  distinct  from  the  soil,  and  shall  go  to  his  executors, (i)(l) 
but  if  the  feoffee  afterwards  buy  the  trees,  they  are  re-annexed  to  the  inher- 
itance ;{k^  yet  if  tenant  in  fee-simple  lease  the  land  for  years,  excepting  the 
trees,  and  afterwards  grants  the  trees  to  the  lessee,  they  are  not  re-annexed 
to  the  inheritance,  but  remain  absolutely  in  the  lessee,  and  will  go  to  his  exe- 
cutors ;(A:)  so,  if  tenant  for  life,  without  impeachment  of  waste,  with  power 
to  cut  trees,  and  to  make  leases  for  three  lives,  &c.,  leases  for  three  lives, 
except  the  trees,  and  dies  before  cutting,  the  trees  are  re-annexed  and  his 
executor  cannot  cut  them.(/)  So,  if  tenant  in  tail  sells  the  trees  to  another, 
they  go  to  the  executors  of  the  vendee  :(m)  but  if  they  are  not  felled  in  the 
lifetime  of  the  tenant  in  tail,  they  go  to  his  issue,  and  neither  the  vendee  nor 
his  executor  can  have  them.(;i) 

*9A  1  26.  *By  the  term  "  timber"  is  meant  properly  such  trees  only  as 
L  -^  are  fit  to  be  used  in  building,  as  oak,  ash,  and  elm  ;  but  some 
trees  may,  by  the  custom  of  the  country,  be  reckoned  timber  which  are  not 
properly  so,  as  birch,  beech,  &c.  ;(o)  so,  walnut  trees,  being  of  considerable 
value,  may  be  estimated  as  timber  ;(o)  therefore,  the  birch,  from  the  use 
made  of  it  in  Yorkshire  for  cottages,  sheep-houses,  and  such  other  mean 
buildings,  has  been  held  to  be  timber,(;))  and  therefore  it  belonged  to  the 
inheritance  and  could  not  be  cut  by  tenant  for  life  ;( /))  so,  willows  in  Hamp- 
shire ;(j)  and  although  it  has  been  said  that  pollards  are  not  timber,(?')  yet 
the  better  opinion  appears  to  be,  that  if  the  bodies  of  them  be  sound  and 
good,  they  shall  be  deemed  timber,(.s)  sed  secus  if  they  are  not  sound,  for 
then  they  are  good  for  nothing  but  fuel  ;(A  the  same  may  be  said  of  dotards, 
if  they  have  any  timber  in  thera.(M) 

(e)  Lifford's  case,  11  Co.  48. 

(/)  Dy.  374,  pi.  18  ;  S.  C,  nom.  Billingsby  t.  Hercy,  Moor,  831 ;  2  Bulst.  6. 

is)  Stukeley  v.  Butler,  Hob.  173.  (A)  Lifford's  case,  11  Co.  49. 

(i)  Lifford's  case,  sup.,  Stukeley  v.  Butler,  sup. 

(t)  Herlakenden's  case,  4  Co.  63,  b.  (I)  Latch,  163. 

(;7i)  Lifford's  case,  sup.  (n)  lb. ;  Bro.  Contract,  26  ;  11  Co.  50  ;  Poph,  194. 

(o)  Chandos  (Duke)  v.  Talbot,  2  P.  Wms.  606. 

(p)  Countess  of  Cumberland's  case,  ^loor,  812.  (7)  Guffly  v.  Pindar,  Hob.  219. 

(r)  Soby  v.  Molyns,  Plowd.  470.  (s)  Chandos  (Duke)  v.  Talbot,  sup. 

(/)  lb.  See  also  Herlakenden's  case,  5  Co.  62  ;  Rabbet  v.  Raikes,  Woodf.  Land,  and 
Ten.  429,  Har.  &.  Wol.  ed. 

(u")  Countess  of  Cumberland's  case,  sup.  See  Channon  v.  Patch,  5  B.  «&  C.  897  ;  S.  C. 
S  D.  &  R.  651. 


(1)  By  a  conveyance  reserving  all  the  pine  timber  of  a  particular  size,  the  trees  remain 
the  property  of  the  grantor,  with  so  much  soil  as  is  necessary  to  support  them.  Tucker 
V.  Andrews,  1  Maine,  122  ;  aliter  if  in  a  grant  in  fee  the  reservation  be  of  all  timber  which 
may  grow  there  forever — that  is  an  estate  of  inheritance.     Clap  v.  Draper,  4  Mass,  266. 


CHATTELS    PERSONAL.  31 

27.  The  timber  while  standing  is  part  of  the  inheritance,  but  whenever  it 
is  severed,  either  by  the  act  of  God,  as  by  a  tempest,  or  by  a  trespasser,  or  by 
wrong,  it  belongs  to  him  who  has  the  first  estate  of  inheritance,  whether  in 
fee  or  in  tail,  who  may  bring  trover  for  it ;  and  this  was  so  decreed  upon 
occasion  of  the  great  windfall  of  timber  on  the  Cavendish  estate,  per  Lord  C. 
King  ;[x)  and  where  there  is  an  infant  entitled  to  the  contingent  inheritance, 
the  Court  of  Chancery  will  see  that  the  money  arising  from  the  sale  of  such 
windfalls  shall  be  secured  for  his  benefit. (?/) 

28.  *As  the  trees  unless  severed,  belong  to  the  heir,(r)  so  does  _  ,_.  -. 
the  fruit  which  they  bear,  as  apples,  pears,  &c.,  belong  to  the  •-  -' 
heir;(a)  so,  grass  growing,  though  fit  to  be  mowed  down  for  hay,  shall  go 
with  the  land  ;(a)(l)  so,  roots  of  all  kinds,  such  as  parsnips,  turnips,  &c., 
belong  to  the  heir,  for  these  cannot  be  come  at  without  digging  up  the  soil, 
which  must  necessarily  be  a  spoil  and  injur}-  to  the  inheritance. (6)  But 
corn,  thouofh  srrowing,  and  ever}'  thing  else  which  is  produced  annually  by 
labour  and  cultivation,  shall  go  to  the  executor  and  not  to  the  heir,  as  hops, 
saffron,  hemp,  &c.  ;(c)(2)  therefore,  if  lessee  for  life  of  a  hop-ground  dies  in 
August  before  severance,  the  executor  may  maintain  trover  for  them  against 
the  remainderman. (rf)  These  annual  fruits  of  the  earth  are  in  law  termed 
emblements,  of  which  see  further,  post.  Estates.  As  to  contracts  under 
the  Statute  of  Frauds,  respecting  lands  and  chattels,  see  Dig.  P.  ii.  tit. 
Frauds  (Statute^  ;  as  to  the  distinction  between  realty  and  pei^onalty  in 
respect  of  waste,  see  post,  Injtries  to  Things  Real.  See  also  Amos  and 
Ferard,  Law  of  Fixtures,  passim. 

4.  Certain  Animals. 

29.  The  law  respects  the  freehold  and  inheritance  in  regard  to  certain 
animals,  althoucrh  all  animals  are  other-wise  chattels  ;  therefore  if  a  man  has 
fish  in  his  pond',  and  dies,  the  fish  go  to  the  heir,  for  they  are  considered  as 
the  profits  thereof,  and  therefore  descend  with  the  pond  to  the  heir  ;(e)  but  if 
fish  are  in  a  trunk  or  net,  or  the  like,  it  is  otherwise,  and  they  go  to  the  exe- 
cutor, for  they  are  severed  from  the  soil.(/)  So,  deer  in  a  park,(o-)  i.  e.  a 
park  properly  so  *called  ;(A)  so,  conies  in  a  warren,  and  doves  in  a  ^-.^  -i 
dove-house,  young  and  old,  shall  go  to  the  heir.(2')  '- 

If  a  party  has  but  a  term  of  years,  still  such  things  will  go  to  his  executor, 
as  accessar}-  to  the  land, (A:)  but  he  must  leave  sufficient  of  the  animals  for 
stores. (/) 

(x)  Bewick  v.  Whitfield,  3  P.  Wms.  263.  See  also  Channon  v.  Patch,  5  B.  &  C.  897  ; 
S.  C.  8  D.  R.  6ol.  Cy)  lb. :  Bewick  v.  Whitfield,  3  P.  Wms.  266. 

(«)  See  ante,  §  25.  (n)  Off.  Ex.  59  ;  Godolph.  122.         * 

(6)  Off.  Ex.  62.  63.  (r"i  Off.  Ex.  59.  (dj  Latham  v.  Atwood,  Cro.  Car.  51  o 

(e)  Parlet  v.  Crav,  Cro.  El.  372  ;  Grev's  case,  Ow.  20.  C/)  1  Ii^st.  8. 

(?)  Off.  Ex.  127  •  Godolph.,  p.  2,  c.  14 ;  Svvinb.  p.  6,  s.  7,  14th  ed. 
(A)  Withers  v.  Iseham,  1  Dy.  70,  a,  1 :  2  lust.  199  :  Davis  r.  Powell,  Willes,  46. 
(j)  1  Inst.  8.     And  see  further  as  to  jame,  Dig.  P.  iii.  tit  Game, 
(it)  Off.  Ex.,  sup.  ^  (/)  1  Inst  53. 


(11  Emaus  v.  Tumbull.  2  John.  R.  322.  ^      ,  •      • 

(2j  Com  or  other  product  of  the  soil  raised  annually  by  labour  and  cultivation  go  to 
executor.     Penhallow  v.  Dwight,  7  3Iass.  34. 


33 


crabb's  law  of  real  property. 


SECTION  II. 

LIABILITY  FOR  THE  PAYMENT  OF  DEBTS. 

I.  Assets  for  tijc  Spawmcnt  of  Beits. 


§31.  Definition  of  the  Term  "Assets." 

Personal  and  Real. 
What  liable  to  Debts. 

Land  made  liable  by  Statute. 
What  Real  Assets. 

Lands  in  Fee-Simple. 

Lands  taken  by  Descent  or  Purchase. 

Lands  in  Ancient  Demesne,  &.c. 

After  an  intermediate  Descent. 

On  the  part  of  Father  or  Mother. 


32 


33 


§34   Advowson. 

35.  Reversion. 

on  an  Estate  for  Life, 
on  an  Estate  Tail. 

36.  An  Estate  pur  autre  Vie. 

37.  Assets  every  where. 

38.  What  necesssary  to  constitute  Assets. 

39.  Equity  of  Redemption. 

40.  Chattels  Real. 


II.  jjunti  for  ti)e  J3ai>ment  of  Debts. 
1.  Distinction  between  Legal  and  Equitable  Assets. 


42.  Administration  of  Assets  in  Courts  of 
Law. 
Administration  of  Assets  in  Equity. 


42.  What  legal  and  what  equitable  Assets. 
Charg-e  of  Debts  generally. 

43.  Equitable  Interest. 


2.  How  far  the  Personal  Estate  is  the  Primary  Fund. 


45.  In  the  Case  of  Bonds. 

46.  In  the  case  of  Mortgages. 

47.  In  the  Case  of  Loans. 


48.  Covenant  to  charge  Lands  where  there 

is  an  original  Debt. 

49.  In  Case  of  Devises. 

Personalty  not  exempt 


3.    The  Order  of  paying  Debts  out  of  Realty. 


50. 


Estates  devised. 
Estates  descended. 
Estates  subject  to  charges. 


50.  Advowson  descended. 
Estates  in  Trust. 


[*23] 


*4.  Marshalling  Assets. 


51.  Where  a  Claimant  has  two  Funds. 

52.  When  allowed,  or  otherwise. 
Nature  of  the  Contract. 

53.  In  whose  favour  allowed. 

54.  In  ftivour  of  Creditors. 

55.  In  favour  of  Legatees. 

Not  where  there  is  a  Devise. 


55.  Exceptions. 

56.  Creditor's  Lien. 

57.  Other  Cases  in  favour  of  Legatees. 

58.  Legacies  to  Charitable  Uses. 

59.  In  favour  of  a  widow  in  respect  of  her 

Paraphernalia. 


§  30.  The  distinction  between  real  and  personal  property  as  to  their 
liability  to  the  debts  of  the  owner  is  of  less  importance  now  than  forme r- 
ly,(m)  yet  it  is  entitled  to  consideration  in  these  respects;  1.  As  they  are 
assets  for  the  payment  of  debts  ;  2.  As  they  form  a  fund  for  the  payment  of 
debts. 

(m)  See  Com.  Dig.  P.  ii.  tit.  Debts,  P.  ii.  tit.  Courts  (Equity.) 


< 


ASSETS     FOR     THE     PAYMENT     OF     DEBTS.  33 

I.  Assets  for  tUe  ^awmcnt  of  Dctts. 

31.  Assets  from  the  French  assez,  sufficient,  is  a  term  in  law  apphed  to 
the  property  of  a  deceased  person,  so  far  as  it  is  sufficient  for  or  apphcable 
to  any  given  purpose,  as  formerly,  to  make  a  warranty  a  bar  to  an  estate 
tail,(n)  or  more  particularly  assets  for  the  payment  of  debts.  Assets  are 
distinguished  into  personal  or  real. 

Personal  assets,  or  assets  entre  mains,  as  they  used  to  be  called, (o)  are 
what  comes  into  the  hands  of  the  executor  or  administrator  to  be  apphed  for 
the  payment  of  debts. 

Real  assets,  or  assets  per  descent,  as  they  are  commonly  called,  are  what 
descend  to  the  heir,  and  are  in  like  manner  applicable  for  the  payment  of 
debts.  What  has  been  deemed  personal  assets  need  not  here  be  particu- 
larized further  than  is  necessary  to  distinguish  them  from  real  r  ,  o  < -i 
*assets.  As  to  the  distinction  between  legal  and  ec[uitable  assets,  L  -^ 
see  infra,  §  41. 

32.  At  common  law  personal  property  has  in  all  cases  been  deemed 
assets  in  the  hands  of  the  executor,  but  it  was  otherwise  with  real  property, 
which  in  the  hands  of  the  heir  was  deemed  assets  only  in  certain  cases,  as 
where  the  ancestor  bound  himself  and  his  heirs  in  an  obliofation,  there  the 
obligee  might  have  an  action  against  the  heir,  and  recover  to  the  value  of 
the  assets  descended, (;j)  but  the  heir  must  have  been  expressly  named, 
otherwise  he  was  not  chargeable  •,{q'j  so,  if  the  heir,  before  action  brought, 
aliened  the  land,  the  obligee  was  without  remedy  at  law,  although  it 
was  otherwise  in  equity  ;(r)  but  the  3  &  4  W.  &  M.  c.  14,  amended  and 
extended  by  11  G.  4  &  1  W.  4,  c.  47,  has  made  not  only  the  heir  but  also 
the  devisee  answerable  for  debts  upon  specialty  ;  and  an  heir  of  an  heir  is 
liable  ;(s)(l)  so,  also,  as  it  seems,  an  executor  or  administrator  of  anheir;(?) 
so,  in  debt  against  the  heir  upon  an  obligation  made  by  his  ancestor,  the 
plaintiff  by  the  common  law  should  have  all  the  land  which  descended  to 
the  heir  in  execution  against  him,  although  in  that  case  only  was  land  liable 
to  the  execution  of  the  debt  of  a  common  person  at  common  law ;  and  the 
reason  assigned  for  this  exception  is,  that  the  law  gave  an  action  of  debt 
against  the  heir,  but  if  the  plaintiff  should  not  have  execution  of  the  lands 
against  the  heir,  he  could  have  no  fruit  of  his  action. (?/) 

By  the  13  E.  1,  c.  18,  land  was  first  subjected  to  the  execution  of  a 
judgment  or  recognisance  by  means  of  the  writ  of  elegit  which  gave  a 
moiety  of  land,  and  has  now,  by  the  1  &  2  V.  c.  110,(.t)  been  extended  to 
the  whole  of  the  land.  By  the  3  &  4  W.  4,  c.  104,  lands  copyhold,  as  well  as 
freehold,  are  made  assets  for  the  payment  of  debts,  *not  only  upon  ^^n- 
specialty,  but  also  debts  by  simple  contract.  See  further,  Dig.  P.  L 
i,  tit.  Debt,  P.  ii.  tit.  Courts  (Equity.) 

(n)  1  Inst.  374,  b. ;  Bro.  Assets  per  Desc.  4, 21.  (o)  Bro.  Assets,  sup. 

(p)  Plowd.  441.  (f/)  Plowd.  440;  2  Inst.  19. 

(r)  1  P.  Wms.  777.     See  Dig,  ii.  tit.  Courts  (Equity.)  (s)  Dy.  368,  a.,  Ca.  4G. 

it)  Hennino-ham's  case,  3  Dy.  344,  a.;  Plowd.  441. 

(m)  Harbcrt's  case,  3  Co.  12  a.  (r)  See  Dig.  P.  ii.  tit.  Execution. 

(1)  Waller's  Executors  v.  Ellis,  2  Munf.  88. 
July,  1846.— 3 


34  crabb'slawofrealproperty. 

33.  As  to  what  things  are  real  assets.  Lands  are  first  enthled  to  notice  ; 
they  must  be  freehold,  and  descend  to  the  heir  in  fee-simple,  not  lands  in 
fee  tail ;(?/)(!)  so,  they  must  be  lands  taken  by  descent,  and  not  by  pur- 
chase ;(z)  but  it  was  decided  before  the  3  &  4  W.  4,  c.  106,  altering  the 
law  of  purchase  and  descent,  that  a  man  could  not  by  any  form  of  convey- 
ance Avhatever  raise  a  fee-simple  to  his  own  right  heirs,  by  the  name  of  heirs, 
as  a  purchase,  so  as  to  prevent  the  reversion  from  being  assets  ;(a)  so,  lands 
in  ancient  demesne  shall  be  assets  ;(6)  so,  lands  in  gavelkind  ;(c)  so,  lands 
descending  to  an  heir,  after  an  intermediate  descent  ;(rf)  so,  lands  descended 
on  the  part  of  the  mother,  as  well  as  land  on  the  part  of  the  father  ;(e)  so, 
where  there  is  a  trust  in  fee,  it  is  made  assets  by  descent  by  the  Statute  of 
Frauds.  (/) 

34.  An  advowson  appendant  to  a  manor  is  unquestionably  assets,  "  because 
the  manor  itself  being  asssts,  what  is  appended  must  be  assets  likewise  ;"(») 
and  it  seems  to  be  now  settled  after  some  discussion  that  an  advowson  in  fee 
in  gross  is  also  assets. (h^  The  next  avoidance  in  a  church,  on  the  other 
hand,  though  a  chattel  real,  is  not  assets  in  the  hands  of  an  executor,  because 
it  is  deemed  to  be  of  no  value  ;  but  if  in  a  quare  impecUt  against  a  stranger 

^  -,  who  wrongfully  *presents,  the  executor  recovers  damages,  the  money 
L        J  so  recovered  will  be  assets  in  his  hands. (t) 

35.  A  reversion  in  fee,  expectant  upon  a  term  for  years,  is  held  both 
at  law  and  in  equity  to  be  present  assets  ;  so  that  the  heir  cannot  plead 
Hens  per  descent  in  delay  of  execution  of  the  rent  and  reversion,  though 
the  plaintiff'  cannot  have  the  benefit  of  the  reversion  until  the  lease  be 
determined, (A')  and  the  possession  of  the  tenant  becomes  that  of  the  heir  on 
the  death  of  the  ancestor  and  makes  an  actual  freehold  in  him,  so  that  by 
such  seisin  his  heir  becomes  liable  to  a  bond  debt  incurred  by  him  in  respect 
of  lands  descended  ;(^)  so,  a  reversion  expectant  upon  an  estate  for  life  is 
asset s,C7n)(2'\  but  a  reversion  in  fee  expectant  upon  an  estate  tail  is  not 

(y)  2  Dy.  12-1,  a.,  Ca.  38.  (s)  Emerson  v,  Inclibird,  1  Ld.  Raym.  728. 

In)  Godolpliin  y.  Abin<,rdon,  2  Atk.  5~. 

(b)  H.  4.  14,  cited  Bro.  Assets  per  Descent,  pi.  11. 

(c)  Hawtric  v.  Au^er,  2  Dy.  239,  a. ;  S.  C.  nom.  ITawtre  v.  Anger,  Moor.  74 ;  Roll  v. 
Osborn,  ITob.  25  ;  1  Inst.  376,  b. ;  Game  v.  Symms,  Cro.  Jac.  21 7. 

(d)  Anon.,  Dy.  368,  a.,  Ca.  46.  (c)  Roll  v.  Osborn,  sup. ;  1  Inst.  sup. ;  W.  .To.  88. 
( /■)  Kinsi  V.  Ballctt,  2  Vcrn.  248.  (c)  Per  I-d.  ITardwickc,  C.3  Atk.  465. 

(h)  1  lust.  :J74,  b. ;  Sav.  119  ;  Robinson  v.  Tonye,  2  Eq.  Ca.  Abr.  509  ;  S.  C,  1  B.  P.  C. 
114;  cited  3  Atk.  464  ;  Ripley  v.  Watervvorth,  7  Ves.  447. 

(i)  Went.  Otr.  Ex.  173,  Mtb  ed. 

{k)  Smitli  V.  An^Tcll,  2  Ld.  Raym.  783  ;  S.  C,  1  Salk.  354  ;  S.  C,  7  Mod.  40 ;  Villers  v. 
Handley,  2  Wils.  49. 

(l)  Buslibv  V.  Dixon,  3  B.  .t  C.  298 ;  S.  C,  5  D.  &  Ry.  126. 

(m)  Uooke  v.  Clcaland,  1  Ixi.  Raym.  53  ;  S.  C.  1  Lutw.  503.  But  in  Fortrey  y.  Fortrcy, 
(2  V'ern.  134,)  a  judi^ment  was  recovered  against  an  licir,  who  had  a  reversion  in  foe 
descended  to  him,  and  it  was  held,  that  the  creditor  could  not  compel  the  heir  to  sell  the 
reversion,  but  must  wait  imtil  it  fell.     Sec,  however,  Tyndalc  v.  Warrc,  Jacob,  212. 

(1)  In  Pennsylvania,  estates  tail  are  subject  to  be  sold  for  debts,  for  the  life  of  the  tenant, 
being  tlie  debtor.  Sliarpe  v.  Pettit,  4  Y.  416.  But  in  many  of  the  States  of  the  Union, 
they'^hnve  been  abolished  or  moditicd,  and  subjected  to  debts.  4  Kent,  Com.  14,  15,  and  n. 

(2)  Loverett  v.  Armstrong,  15  IVIass.  26.  Whitney  v.  Whitney,  14  Mass.  88.  All  pos- 
sible titles,  contin-rcnt  or  otliorwisc,  may  be  sold,  in  Pennsylvania.  Humphreys  v.  Id., 
1  Y.  427.  Hurst  v.  Lithgow,  Id.  24.  Burd  v.  Dansdale,  2  Bin.  80.  Rickcrt  v.  Madeira, 
1  Raw.  329.     Jarrctt  v.  Tomlinson,  3  W.  &  S.  114. 


ASSETS     FOR     THE     PAYMENT     OF     DEBTS.  35 

assets,  because  it  lies  in  the  Avill  of  the  tenant  in  tail  to  bar  it  at  his  plea- 
sure,(/?)  but  aft(M-  the  tail  is  spent  it  is  assets, (n)  and  such  a  reversion  is 
assets  for  the  debt  of  the  first  person  who  was  in  possession,  and  who 
created  the  reversion  ;(o)  it  is  however  not  settled  whether  it  be  assets  for 
the  debt  of  any  intermediate  taker.  In  Smith  v.  Parker,(p)  it  was  decided 
that  such  a  reversion  is  assets,  but  the  correctness  of  this  decision  has  been 
questioned  in  Tweedale  v.  Coventry, (y)  and  Doe  v.  Hutton.(r) 

36.  An  estate  jowr  autre  vie  to  a  man  and  his  heirs  is  real  assets,  and  is 
made  liable  by  the  Statute  of  Frauds  to  debts  *by  specialty.  (*)  On  ^  -, 
the  other  hand,  a  like  estate  to  executors  and  administrators  is  per-  L  'J 
sonal  asse/s.(/)(l) 

37.  Personal  assets  in  any  part  of  the  world  are  assets  in  every  part  of 
the  world  ;(«)  so,  if  there  be  lands  in  different  counties,  they  should  be 
equally  assets  by  descent.(t')  In  Noell  v.  Robinson, (.r)  it  was  held,  that  a 
thing,  although  an  inheritance,  being  in  a  foreign  country,  was  nevertheless 
a  chattel ;  but  in  Gardiner  v.  Fe\],{y)  it  was  referred  to  the  Master  to  inquire 
what  interest  the  testator  had  in  lands  situated  in  a  foreign  country,  whether 
personal  or  real.  By  the  5  Geo.  2,  c.  7,  houses  and  lands,  and  other  here- 
ditaments situate  in  any  British  plantation  in  America,  shall  be  deemed  assets 
for  the  payment  of  debts  ;  and  by  the  9  Geo.  4,  c.  33,  a  similar  provision  is 
made  in  respect  to  real  property  belonging  to  all  persons,  not  Mahomedans  or 
Gentoos,  situated  in  India. 

38.  To  constitute  an  inheritance  assets,  it  must  be  something  certain,  as 
lands,  rents,  commons,  and  the  hke  ;(z)  therefore,  a  rent  seek,  which  descend- 
ed to  the  heir,  and  for  which  he  had  no  remed}^  was  not  assets,  until  he  had 
gained  seisin. (a)  So,  an  annuity  is  not  assets,  for  it  is  only  a  ehose  in 
action  ;{h)  so,  generally,  a  right  without  any  estate  in  possession,  reversion 
and  remainder,  is  not  assets  until  it  be  recovered  and  reduced  into  posses- 
sion.(o)(2)  A  power  of  appointment,  however,  to  raise  a  sum  of  money  is 
assets  for  creditors  ;((Z)  but  there  is  this  distinction  between  a  power  and 
*absolute  propert)^(ej  that,  unless  the  power  be  executed,  no  creditor  ^  , 
can  be  entitled  to  the  money  ;  and  it  is  said,  in  that  case,  »  father  L         J 

(n)  Kellow  v.  Rowden,  3  Mod.  257  ;  S.  C,  3  Salk.  178 ;  S.  C,  Show.  244 ;  S.  C,  Hclt, 
71  ;  S.  C,  Carth.  126.  (o)  Kinaston  v.  Clark,  2  Atk.  204. 

(p)  2  Blackst.  1230.  {q)  1  B.  C.  C.  240. 

(r)  -3  B.  &  P.  643.  (s)  Marwood  v.  Turner,  3  P.  Wms.  165. 

(0  Devon  (Duke)  v.  Atkins,  2  P.  Wms.  381 ;  Westfaling  v,  Westfaling,  3  Atk.  460, 
recognised  in  Ripley  v.  Waterworth,  7  Ves.  477. 

(m)  Sheph.  Touchst.  496,  citing  6  Co.  47,  recognized  in  Att.-Gcn.  v.  Dimond,  1  Cr.  &,  J. 
370  ;  S.  C,  1  Tvrw.  258.  (i>)  Dowdale's  case,  6  Co.  47  a. 

(x)  2  Ventr.  358.  '  (y)  1  Jac.  &  W.  24  ;  S.  C,  2  Wils.  C.  C.  22. 

(2)  2  Inst.  293.  (a)  Brediman's  case,  6  Co.  58  b. 

(fe)  Br.  Assets  per  Desc,  pi.  26,  citing  Doct.  and  Stud.,  lib.  1,  fol.  76. 

(c)  Brediman's  case,  sup. 

(d)  George  v.  IMilbanke,  9  Ves.  190. 

(e)  Holmes  v.  Coghill,  7  Ves.  290. 

(1)  By  the  act  of  1834,  §  9,  unless  limited  to  the  heirs,  they  pass  to  creditors,  in  Penn- 
sylvania.    As  toother  States,  see  4  Kent,  27  ;  Aerston  v.  Gage,  9  Mass.  395. 

(2)  S.  V.  Janett  v.  Tomlinson,  3  W.  &  S.  114. 


36  crabb's   law   of   real   property. 

than  supplying  a  defect  in  the  execution  of  a  power,  the  Court  has  never  gone" 
in  favour  of  creditors.(/)(l) 

39.  An  equity  of  redemption  of  a  mortgage  in  fee  is  assets  in  equity, 
though  not  at  law  ',{g)  and  an  equity  of  redemption  of  a  mortgage  for  years 
of  an  estate  in  fee  is  assets  to  pay  debts  by  simple  contract  •,{h)  so,  a  debt  by 
a  decree  in  equity,  though  but  a  personal  demand,  will  bind  the  heir  or 
devisee  having  assets  ;(i^  on  the  other  hand,  if  an  executor,  in  right  of 
his  testator,  recover  damages  for  any  breach  of  covenant  or  contract,  although 
it  sounds  in  the  realty  as  for  not  assuring  lands,  &c.,  yet,  if  it  be  broken  in 
the  testator's  lifetime,  it  shall  be  assets  in  the  hands  of  the  executor. (A:) 

40.  Chattels  real  are  regularly  personal  assets  /  so  a  leasehold  estate  for 
years  in  Ireland  is  personal  assets  in  England,  and  may  be  sold  here  by  the 
executor  ;(/)  but  as  to  term  for  years,  it  has  been  decided  in  more  than  one 
case,  that  such  a  term  being  a  trust-terra  is  not  assets  in  equity  ;(??»)  and  the 
distinction  taken  is,  that  a  term  vested  in  trustees  is  not  assets  to  pay  debts  ; 
otherwise,  if  the  term  be  in  the  party  himself,  and  the  inheritance  in  trus- 
tees ;(n)  although  a  dictum  to  the  contrary  of  this  distinction  is  reported  in 
Ratcliffv.  Grave  ;(o)  but  in  the  S.  C,  1  Vern.  196,  no  mention  is  made  of 
this  point. 


[  *29  ]  *ii.  j^mti  fov  tUe  ilaument  of  Bctits. 

41.  Under  this  head  may  be  considered,  1.  The  distinction  between  legal 
and  equitable  assets  ;  2.  Hoav  far  personalty  is  the  fund  primarily  liable  ; 

3.  The  order  in  which  real  property  is  applicable  for  the  payment  of  debts  ; 

4.  Marshalling  assets. 

1.  Distinction  between  Legal  and  Equitable  Assets, 

42.  Assets  which  are  liable  to  debts  and  legacies  by  the  course  of  law  are 
called  legal  assets,  but  such  as  are  liable  only  by  the  help  of  a  court  of  equity 
are  called  equitable  assets.{2^ 

(/)  Per  Sir  W.  Grant,  lb. 

Is)  Sawlcy  v,  Gower,  !2  Vern.  61.  (A)  Coleman  v.  Winch,  1  P.  Wms.  775. 

(i)  Conner  v.  Browne,  1  Ridgw.  P.  C.  13P.  {k)  Off.  of  Exec.  65. 

(/)  Bligh  V.  Lord  Darnlcy,  2  P.  Wins.  622  ;  and  see  Gardiner  v.  Fell,  1  Jac.  «fe  Walk. 
22  ;  S.  C,  2  Wils.  C.  C.  22. 

(m)  Tiffin  V.  Tiffin,  1  Vern.  2  ;  S.  P.,  Dowse  v.  Percival,  Id.  104. 

(n)  Thruxton  v.  Att.-Gen.,  Id.  341.  (o)  2  Chan.  C^.  152. 

(1)  Such  powers  are  declared  assets,  and  can  be  exercised  by  Chancery  in  New  York. 
4  Kent,  Com.  341.  >S 

(1)  The  distinction  between  Ic*^!  and  equitable  assets  exists  in  New  York.  Moses  v. 
Murgatroyd,  1  J.  C.  R.  130  ;  in  Kentucky,  Grider  v.  Payne,  9  Dana,  190  ;  and  Virginia, 
Bickhouse  v.  Patton,  6  Pet.  168;  and  probably  wherever  the  administration  of  law 
and  equity  are  in  distinct  tribunals.  In  Pennsylvania,  there  is  no  distinction.  In  re  John 
Spcrry,  1  Ash.  351  ;  but  the  lions  given  by  law,  existing  at  the  time  of  the  death  continue 
and  are  first  paid.  Girard  v.  M'Dcrmott,  5  S.  &  R.  12d.  Fryhoffer  v.  Busby,  17  Id.  122. 
As  in  equity,  Codwise  v.  Gelston,  10  John.  522. 


FUND     FOR    THE     PAYMENT     OF     DEBTS.  37 

Legal  assets  are  administered  according  to  the  rules  of  priority  which  have 
obtained  for  the  payment  of  debts  ;  as,  first,  Crown  debts  ;  next,  debts  which, 
by  particular  statutes,  are  to  be  preferred  before  others,  as,  money  owing  for 
the  postage  of  letters  under  the  Postage  Acts,  and  money  to  be  received  by 
the  overseers  of  the  poor  under  the  17  Geo.  2,  c.  38,  or  by  the  officer  of 
Friendly  Societies,  under  the  4  &  5  W.  4,  c.  40. (;j)  After  these  follow  debts 
of  record,  as  judgments  [entered  according  to  2  &  3  Vict.  c.  1 !,((/)]  recog- 
nizances, then  debts  on  special  contract,  as  for  rent,  or  on  morto-ao-es,  bonds 
covenants,  and  other  hke  specialities  ;  and  lastly,  debts  on  simple  contract. 
See  further  on  this  subject,  Bac.  Abr.  Executors  and  Administrators  (H.) ; 
2  Wms.  Exec.  1297  et  seq.  ;  Ram  on  Assets,  353  et  seq. 

In  a  court  of  equity  all  debts  are  equal,  whether  by  judgment,  bond,  or 
simple  contract,  and   equitable  assets  will  be  applied  in  satisfaction  of  the 
creditors  7J«ri  passu  ;(r)  but  when  a  court  of  equity  administers  legal  assets, 
it  does  so  *in  the  due  course  of  administration,  allowing  the  different     ^ 
creditors  to  enjoy  the  right  of  priority  they  are  entitled  to  at  law.(s)  L  J 

.  As  to  what  has  been  deemed  equitable  assets  in  distinction  from  legal 
assets  depends,  as  it  appears,  either  upon  the  intention  of  the  testator,  or 
upon  the  nature  of  his  interest  in  the  property.(?)  Upon  the  principle  of 
law,  that  whatever  came  to  the  hands  of  a  person  in  the  character  of  execu- 
tor, or  by  reason  of  his  executorship,  should  be  assets  in  his  hands, (?<)  the 
generality  of  the  old  cases  determined  that  money  arising  by  sale  of  lands 
devised  to,  or  subjected  to  the  power  of,  executors  to  sell  for  the  payment  of 
debts  and  legacies,  should  be  legal  assets  in  their  hands,  although  they  could 
not  be  charged  with  the  value  of  the  lands  before  sale.(.c)  In  some,  however, 
of  the  old  cases,  where  a  party  was  supposed  to  take  in  the  double  capacity 
of  trustee  and  executor,  the  assets  were  held  to  be  equitable  assefs,{y)  and 
that  too,  though  the  devise  were  not  to  the  executor  expressly  upon  trust 
or  as  a  trustee,  provided  there  be  enough  in  the  will  to  convert  the  executor 
into  a  trustee,  as  if  the  devise  be  to  him  and  his  heirs. (z) 

In  Freemoult  v.  Dedire,(a)  it  was  holden,  that  if  an  estate  descended  to 
the  heir,  charged  with  debts,  it  was  legal  assets  ;  but  this  decision  has  been 
expressly  overruled  *in  Bailey  v.  Ekins,(i)  recognising  Hargrave  v.  ^  _. 
Tindan,(c)  Batson  v.  Lindegreen,((-/)  Burt  v.  Thomas,  cited  7  Ves.  L  -I 

323 ;  and  it  makes  no  difference  whether  the  descent  be  broken  or  not  ;(c) 
and  though  in  Batson  v.  Lindegreen,(y)  where  the  devise  was  to  the  heir 

(  p)  See  Dig.  P.  ii.  iii.  tit.  Friendly  Societies,  Poor. 

Iq)  See  Dig.  P.  iii.  tit.  Judjrments.  (r)  Sir  C.  Cox's  Creditors,  3  P.  Wms.  341. 

(s)  Wilson  V.  Fielding,  2  Vern.  764;  Clay  v.  Willis,  1  B.  &  C.  371. 

(0  2  Fonbl.  Eq.  Pr.  404,  n.  ( /")• 

(«)  Dethick  v.  Caravan,  1  Roll.  Abr.  920,  pi.  6  ;  Berwell  v.  Corrant,  Hard.  405  ;  Alex- 

ander  v.  Gresham,  1  Lev.  224. 

M    (x)  Girling  v.  Lee,  1  Vern.  63  ;  Hawker  v.  Buckland,  2  Vern.  106;  Greaves  v.  Powell, 

•^43  ;  Cutterbulk  v.  Smith,  Prcc.  Chan.  127  ;  Anon.,  2  Vern.  405  ;  Bickham  v.  Freeman, 

Free.  Chan.  136  ;   Walker  v.  Meager,  2  P.  Wms.  416;  Lord  Mashara  v.  Harding,  Bunb. 

339  ;  Blatch  v.  Wilder,  2  Atk.  420. 

(v)  Hickson  v.  Witliam,  Cas.  temp.  Finch,  196  ;  S.  C,  Freem.  305  ;  S.  C,  nom.  Hixon 
V.  Wytham,  1  Chan.  Ca.  248  ;  Anon.,  2  Vern.  133  ;  Challis  v.  Casborn,  Prec.  Chan.  408  ; 
Chambers  v.  Harvest,  Mos.  123  ;  Hall  v.  Kendall,  Id.  323;  Prowse  v.  Abingdon,  1  Atk. 
484  ;  Lewin  v.  Oakley,  2  Atk.  50. 

{z)  Silk  V.  Prime,  1  B.  C.C.  138,  n. ;  Newton  v.  Bennett,  Id.  135  ;  Barker  v.  Bouclier, 
Id.  140.  (a)  1  P.  Wms.  429. 

(ft)  7  Ves.  319.  (c)  1  B.  C.  C.  136,  n.  (<^)'2  B.  C.  C.  94. 

(e)  Bailey  v.  Ekins,  sup.  ( /  )  Sup. 


38         crabb's  law  of  real  property. 

in  trust  to  pay  the  debts,  the  heir  was  held  to  take  by  his  better  title,  yet  he 
was  by  the  devise  made  a  trustee,  Bailey  v.  Ekins.(£r) 

43.  Where  the  interest  of  the  party  is  purely  equitable,  it  has  been  held 
that  the  assets  should  be  deemed  equitable,  unless  it  came  within  the  Statute 
of  Fraudulent  Devises, (A)  therefore  where  a  mere  trust  estate  descended 
upon  an  heir,  it  ivould  be  considered  as  legal  and  not  equitable,  because  the 
statute  gave  the  specialty  creditor  his  remedy  at  law  against  the  heir ;  as  if 
there  was  a  mortgage  for  years,  leaving  the  reversion  in  fee  in  the  mortgagor, 
that  w^ould  be  legal  assets,  because  the  bond  creditor  might  have  judgment 
against  the  heir  of  the  obligor,  and  a  cesset  execUtio  till  the  reversion  came 
into  possession,  sed  secus  Avhere  it  was  a  mortgage  of  the  whole  inheritance, 
because,  in  that  case,  the  creditor  could  have  no  remedy  at  law,  and  if  he 
brought  an  action  against  the  heir  the  latter  might  plead  riensper  descent.{i\ 
In  support  of  this  decision,  so  far  as  regards  a  chattel  mortgage,  it  has  been 
held  that  chattels,  whether  real  or  personal,  mortgaged  or  pledged  by  the  tes- 
tator, and  redeemed  by  the  executor,  should  be  assets  at  law  in  the  hands  of 
the  executor,  for  so  much  as  they  were  worth  beyond  the  sum  paid  for  their 
redemption  ;(A:)  it  has,  however,  been  held  in  other  cases,  than  the  equity  of 
P  =^09  -1  redemption  of  a  term  for  *years  is  equitable  and  not  legal  assets  ;(/) 
L  -'  and  it  is  also  said  in  Wentworth's  Office  of  an  Executor,  that  where 
the  redemption  of  the  executor  is  after  the  day  of  payment,  equity  only  and  not 
law  can  make  any  part  of  the  value  assets  in  his  hands  ;  these  conflicting 
decisions  may  therefore  be  reconciled,  if  in  the  cases  first  cited  the  testator  did 
not  survive  the  day  of  redemption. (?«)  As  to  mortgages  in  fee  a  distinction  is 
taken  in  Sharpe  v.  Scarborough  (Earl,)(n)  between  bond  creditors  and  judg- 
ment creditors,  the  equity  of  redemption  being  in  the  debtor  in  the  former 
case,  but  in  the  latter  case  the  judgment  creditor  has  the  right  to  redeem, 
and  therefore  the  equity  of  redemption  is  in  that  case  not  equitable  but  legal 
assets. 

2.  How  far  the  Personal  Estate  is  the  Primainj  Fund. 

44.  As  a  rule  the  personal  estate  is  the  primary  fund,  Avhich  must  be 
resorted  to  for  the  payment  of  debts  of  every  description ;  but  to  this  rule 
there  are  several  exceptions — in  the  case  of  bonds,  and  other  specialities 
generally,  in  the  case  of  mortgages,  and  in  the  case  of  devises. 

45.  As  regards  debts  by  bond  and  other  specialties  generally,  where  the 
ancestor  has  bound  himself  and  his  heirs,  the  creditor  may  in  that  case  sue 

ig)  Sup. 

(//)  3  &  4  W.  &  M.  c,  14,  amended  by  11  Geo.  4  &,  1  W.  4,  c.  47.  See  Dig.  P.  ii.  tit. 
Courts  (Equity.) 

(i)  Plunket  v.  Penson,  2  Atk.  290. 

{k)  Hawkins  v.  Laws,  1  Leon.  155  ;  Harccourt  v.  Wrenham,  Moor.  858  ;  S.  C,  nom. 
Harwood  v.  Wrayman,  1  Roll.  Rep.  56  ;  1  Roll.  Al)r.  920 ;  1  Brownl.  76  ;  Alexander  v. 
Lady  Gresham,  1  Leon.  224.     See  also  Mr.  Cox's  note,  3  P.  Wms.  342. 

(/)  The  Creditors  of  Sir  Charles  Cox,  3  P.  Wms.  342 ;  Hartwell  v.  Chitters,  Ambl.  308, 
both  rccog-niscd  in  Clay  v.  Willis,  1  B.  &  C.  372,  which  last  is  also  recognised  in  Baker  v. 
Blay,  9  B.  &  C.  493. 

(?rt)  Sec  2  Wms.  Exec.  1320,  3rd  ed. 

(h)  4  Ves.  541. 


FUND    FORTHE    PAYMENT    OF    DEBTS.  39 

either  the  heir  or  the  executor  at  his  election  ;(o)(l)  and  it  is  no  plea  in  an 
action  against  the  heir  that  the  executor  or  administrator  has  assets  ;(/>)  so, 
the  creditor  may  sue  the  same  person  being  both  heir  and  executor  ;((/)  but  if 
the  heir  or  executor  pay  the  whole  or  part,  and  afterwards  the  other  be  sued, 
there  shall  be  rehef  in  audita  querela  ;{(])  so,  if  the  heir  pay  his  an-  ^  , 
cestor's  *debts  to  the  value  of  the  land  descended,  he  shall  hold  the  L  -I 
land  discharged  from  the  other  debts  of  the  ancestor  ;(r)  but  he  cannot 
claim  to  retain  a  certain  sum,  for  money  laid  out  in  repairing  the  tenements 
descended  ;(s)  so,  a  man  may  make  an  equitable  as  well  as  a  legal  charge  on. 
his  estate,  and  equity  will  maintain  it  against  his  heir  ;(^)  so,  where  the  heir, 
being  likewise  administrator,  and  having  real  assets  per  descent,  discharged 
a  bond  debt,  in  which  he  was  bound,  which  he  insisted  was  out  of  the  per- 
sonal estate,  the  Court  of  Chancery  would  not  admit  of  this  construction,  to 
the  defeating  of  the  simple  contract  creditors. (w)  On  the  other  hand,  if  an 
heir  discharges  the  bond  debt  of  his  ancestor,  and  the  executor  has  assets, 
he  shall  reimburse  the  heir  thereout  ;{x)[2)  and  this  extends  not  only  to  the 
hseres  natus  or  heir-at-law,  but  also  to  the  hxres /actus  or  the  devisee. (t/) 

46.  As  a  rule,  if  a  man  mortgages  lands,  and  covenants  to  paj^  the  money, 
and  dies,  the  personal  estate  of  the  mortgagor  shall,  in  favour  of  the  heir,  be 
applied  to  exonerate  the  mortgage, (2)(3)  although  the  personal  estate  has  been 

(o)  Br.  Assets  per  Desc.  33. 

( p)  Quarles  v.  Capell,  2  Dy.  204,  b. ;  Davy  v.  Pepys,  Plowd.  439  ;  Davies  v.  Churchman, 
3  Lev.  189  ;  Galton  v.  Hancock,  2  Atk.  426. 

(9)  Haight  V.  Langliam,  3  Lev.  304. 

()•)  Buckley  v.  Nifflitimrale,  1  Str.  665';  S.  C,  Ca.  temp.  Talbot,  109. 

(s)  Shetehvorth  vfNeville,  1  T.  R.  454.  (0  Wigg  v.  Wigg,  1  Atk.  382. 

(«)  Neave  v.  Alderton,  ]  Eq.  Abr.  144. 

{x)  Armitage  v.  Metcalf,  1  Clian.  Ca.  74  ;  Anon.,  1  Chan.  Ca.  5. 

((/)  Gower  v.  Mead,  Prcc.  Chan.  2 ;  S.  C.  nora.  Meade  v.  Hide,  2  Vern.  128.  See  also 
Pockley  v.  Pockley,  1  Vern.  36  ;  Cutler  v.  Coxeter,  2  Vern.  302  ;  Hawes  v.  Warner,  Id. 
477  ;  French  v.  Chichester,  Id.  568 ;  Lutkins  v.  Leigh,  Ca.  temp.  Talbot,  53 ;  Rider  v. 
Wager,  2  P.  Wms.  335,  in  which  the  personal  estate  was  applied  to  exonerate  the  real  in 
favour  either  of  the  heir  or  the  devisee,  whether  general  or  particular. 

(2)  Cope  V.  Cope,  2  Salk.  449. 


(1)  In  Pennsylvania,  all  lands  being  assets  and  subjected  to  a  lien  for  all  the  debts  of  a 
decedent,  the  course  is  to  proceed  against  the  personal  representative,  which  might,  before 
the  act  of  1797,  be  done  at  any  time  after  the  death  of  the  ancestor, — by  that  act  the  proceed- 
ings must  be  commenced  and  prosecuted  within  seven  years — nowreduced  by  the  actof  1834 
to  iivc  years,  in  order  to  charge  the  land ;  unless  this  be  done,  the  heir  or  devisee  is  equally 
discharged  with  a  piuchaser.  Bailey  v.  Bowman,  6  W.  &  S.  118.  Upon  this  judgment, 
the  land  could  be  levied  on  and  sold  without  notice  to  the  heir,  until  the  act  of  1834, 
§  34,  provided  a  remedy  ;  under  this  it  has  been  held  that  after  a  judgment  against  the 
personal  representatives,  where  the  real  estate  is  intended  to  be  levied  on,  the  heirs  must 
be  summoned  by  sci.  fa.,  in  which  they  are  at  liberty  to  contest  the  original  debt.  Mur- 
phy's Appeal,  8"  W.  &  S.  165.  Atherton  v.  id.,  Dec.  T.  1846,  S.  C.  Penna.  That  lands  are 
assets  for  payment  of  debts  generally  in  all  the  States  of  the  Union,  is  assumed  by  Kent., 
4  Com.  421. 

(2)  The  same  rule  prevails  in  Pennsylvania.  In  re  Keysey,  9  S.  &.  R.  72-3 ;  and  in 
Virginia,  Haydon  v.  Good,  4  H.  &.  ISl.  4(j0. 

(3)  The  heir  shall  be  discliarfred  of  a  mortgage  out  of  the  personal  assets.  Dandrige 
V.  Minge,  4  Randol.  397.  Gibson  v.  M'Cormick,  10  Gill  &  John.  107.  In  re  Keysey,  9 
S.  &.  R.  72-3 ;  unless  the  estate  be  insolvent,  Gibson  v.  Crehore,  5  Pick.  150 ;  but  the  rule 
has  been  changed  in  New  York  by  statute.     MoUan  v.  Griflith,  3  Paige,  404. 


40  crabb's  law    of    real   property. 

devised  ;(o)  but  such  exoneration  will  not  be  allowed  to  the  prejudice  of  any 
creditor,(6)  or  any  legatee,  except  a  residuary  legatee. (c) 
r  *^J.  1  '^'^'  *-E'^'^ry  ^0^^  creates  a  debt  from  the  borroAver,  whether  there 
L  -^  be  a  bond  or  covenant  for  payment,  or  not,(<?)  but  in  all  these  cases, 
the  debt  being  considered  as  the  personal  debt  of  the  borrower,  the  charge 
on  the  real  estate  is  merely  collateral ;  on  the  other  hand,  where  the  charge 
is  on  the  real  estate  principally,  although  there  be  a  personal  collateral  secu- 
rity, the  rule  is  otherwise,  therefore  a  covenant  in  a  settlement  to  charge 
land  for  the  payment  of  portions,  or  a  jointure  and  the  like,  although  such  a 
covenant  creates  a  debt,  yet  it  is  not  a  personal  debt,  being  an  auxiliary  secu- 
rity only,  and  the  land  the  principal  security. (e)(1) 

48.  The  land  is  also  not  exonerated  unless  the  debt  be  the  original  debt  of 
the  party,  therefore  where  a  grandfather  mortgages,  and  the  lands  descend 
to  his  son,  and  his  son  dies,  having  a  personal  estate  and  a  son,  the  son's  per- 
sonal estate  shall  not  go  in  aid  of  the  mortgage  ;(/)  and  the  like,  if  a  man 
buys  an  estate  subject  to  a  mortgage,  the  land  remains  the  proper  fund  for 
the  discharge  thereof,(y)  although  there  is  a  covenant  to  pay  the  mortgage- 
-raoney.(g) 

r  *q-  -1  49.  In  a  devise,  the  personal  estate  was  held,  in  the  *earlier  cases, 
L  -'  not  exempt  from  the  payment  of  debts  and  legacies  by  anything 
short  of  express  words. (/j)(2)  This  strict  rule  was,  however,  departed  from, 
and  then  it  was  held,  that  the  want  of  such  words  might  be  supplied  by 
"  plain  implication"  or  "  manifest  intention,"  or,  as  it  has  been  more  expressly 

(a)  Howel  v.  Price,  1  P.  Wms.  291.  See  also  Pocklcy  v.  Pockley,'l  Vcrn.  36;  King  v. 
Kinor,  3  p.  Wms.  360  ;  Gallon  v.  Hancock,  2  Atk.  436  ;  Robinson  v.  Gee,  1  Vez.  25  j  IJel- 
videre  (Earl)  v.  Rochfort,  6  B.  P.  C.  520  ;  PhUlips  v.  PhiUips,  2  B.  C.  C.  273. 

(b)  Bartholcmew  v.  May,  1  Atk.  487. 

(c)  O'Neal  v.  Mead,  1  P.  Wms.  693,  recognised  in  Halliwell  v.  Tanner,  1  Russ.  &  My. 
633.  See  also  Davis  v.  Gardiner,  2  P.  Wms.  190  ;  Rider  v.  Wager,  Id.  335  ;  Wythe  v. 
Henniker,  2  ]My.  &  K.  635. 

id)  Balsh  V.  Higiiham,  2  P.  Wms.  454 ;  King  v.  King,  3  P.  Wms.  358. 

(f)  Graves  v.  Hicks,  6  Sim.  398  ;  confirming  Coventry  (Lady)  v.  Coventry  (Lord,)  2  P. 
Wms.  222  ;  Edwards  v.  Feeman,  Id.  435  ;  Wilson  v.  Darlington  (Lord,)  Id.  664,  n. ;  Lanoy 
V.  Athol  (Duke,)  2  Atk.  244.  See  also  Leehmere  v.  Charlton,  15  Ves.  193 ;  Ex  parte 
Digby,  Jac.  235  ;  S.  C,  1  Jac.  &  W.  610. 

(/")  Cope  V.  Cope,  2  Salk.  449. 

(^)  Bagot  v.  Oughton,  1  P.  Wms.  347.  See  also  Evelyn  v.  Evelyn,  2  P.  Wm.s.  659  ; 
Lewis  V.  Nangle,  Id.  664,  n. ;  Perkins  v.  Bijnitum,  lb. ;  Shafto  v.  Sliaflo,  lb. ;  Bassett  v. 
Percival,  lb.;  Lewis  v.  Xcwnham,  1  Vez.  5i  ;  Lacam  v.  Merlins,  Id.  312;  Robinson  v. 
Gee,  lb. ;  Parsons  v.  Freeman,  Ambl.  115  ;  Lawson  v  Hudson,  1  B.C.C.  58  ;  Tankerville 
(Earl)  v.  Fawcett,  2  B.  C.  C.  57  ;  Tweddcll  v.  Tweddell,  Id.  lOL  152;  BiUingliurst  v. 
Walker,  Id.  604,  where  the  same  principle  is  laid  down  ;  and  in  some  of  these  casus  it  was 
held,  that  even  an  original  mortgage  made  by  the  person  to  whom  land  descended,  or  was 
devised,  would  not  operate  to  make  the  personal  estate  liable  where  the  mortgage  wp.s  made 
for  the  purpose  of  paying  off  debts  or  legacies  of  the  ancestor  or  testator.  2  P.  Wms. 
664,  n. ;  Tankerville  v.  Fawcett,  sup.  But  on  this  point  see  Barhani  v.  Thanct  (Earl,)  3 
M.  &.  K.  607.  A  party  maj',  however,  by  an  act  of  his  own,  which  unequivocally  denotes 
his  intention  so  to  do,  make  the  original  debt  his  own.  fLawsonv.  Hudson,  sup.;  Billing. 
hurs.t  V.  Walker,  sup. ;  Hamilton  v.  Worley,  4  B.  C.  C.  199  ;  S.  C,  2  Ves.  jun.  62.) 

(h)  Dohnan  v.  Smith,  Prec.  Chan.  458  ;  Fereyes  v.  Robertson,  Bunb.  302. 

(1)  Cumberland  v.  Codington,  3  J.  C.  R.  229.     In  re  Kcysey,  9  S.  &  R.  72. 

(2)  Express  words  necessary.  Walker's  Estate,  3  Raw.  237.  Rogers  v.  Rogers,  1  Paige, 
183.     Howe  v.  Brewer,  3  Gill  &.  John.  153. 


V 

FUND     FOR    THE     PAYMENT     OF    DEBTS.  41 

said,  "irresistible  conclusion,"  or,  as  it  was  afterwards  modified,  »  by  such  a 
conclusion  as  would  satisfy  a  judge."  In  the  following  cases  the  personal 
estate  has  been  held  not  exempt : — Cutler  v.  Coxeter,(i)  French  v.  Chiches- 
ter,(/c)  Dolman  v.  Smith, (/)  Hazlewood  v.  Pope,(?n)  Inchiquin  v.  French,(n) 
Samwell  v.  Wake,(o)  Ancaster  (Duke)  v.  Mayer,(/9)  Astley  v.  Tankerville 
(Earl,)(5)  Gray  v.  Minnethorpe,(>')  Brummel  v.  Prothero,(s)  Tail  v.  North- 
wich,(/)  Hartley  v.  Hurle,(z<)  Bridges  v.  PhiUips,(t;)  Watson  v.  Brickwood,(x) 
M'Cleland  v.  Shaw,(3/)  Aldridge  v.  Wallscourt  (Lord,)(z)  Tower  v.  Rous,(a.) 
Bootle  V.  Blundell,(6)  Gittins  v.  Steele,(c)  Rhodes  v.  Rudge,(f/)  Bickham  v. 
Cruttwell,(e)  In  the  following  cases  the  personal  estate  has  been  considered 
exonerated  :— Wainwright  v.  Bendlowes,(/ )  Bamfield  v.  Wyndham,(g-) 
Adams  v.  Meyrick,(/i)  slapleton  v.  Colville,(i)  Phippe  v.  Annesley,(A:)  Bick- 
nell  V.  Page,(/)  Walker  v.  Jackson,(7/i)  PhiUps  v.  Nicholas,(>?)  Holiday  v. 
Bowman,(n)  *Anderton  v.  Cook,(o)  Kynaston  v.  Kynaston,(o)  Glebe  ^gg  -, 
V.  Glebe,(o)  Webb  v.  Jones,(79)  Williams  v.  Llandaff  (Bp.,)(ry)  Bur-  L  -1 
ton  V.  Knowlton,(r)  Gaskill  v.  Hough,(s)  Hancox  v.  Abber  -,{1)  the  result  of 
all  which  cases  appears  to  be,  that  a  general  devise  of  real  and  personal 
estate  for  the  payment  of  debts,  will  not  exempt  the  personalty,  as  the  pri- 
mary fund,  for  it  is  not  sufficient  to  charge  the  real  estate,  it  is  absolutely 
necessary  in  express  terms  to  discharge  the  personal  estate  :  Bootle  v.  Blun- 
de\\,{u)  Bickham  v.  Crut\vell,(t<)  At  all  events,  the  conclusion  of  the  testa- 
tor's intention  must  be  drawn  from  the  general  context  of  the  will,  and  evi- 
dence dehors  the  will  is  not  admissible.(a:) 

3.  The  Order  of  paying  Debts  out  of  the  Reed  Estcde.[\) 

50.  With  respect  to  the  priority  of  application  of  real  assets  for  the  pay- 
ment of  debts,  when  the  personal  estate  is  either  exempt  or  exhausted,  the 
following  appears  to  be  the  order  laid  down  : — 

1.  The  real  estate  specifically  devised  for  the  payment  of  debts. (y) 

2.  Estates  descended. (2) 

3.  Real  estate  specifically  devised,  subject  to  a  general  charge  of  debts.(a) 

(i)  2  Vern.  301.  Qi)  Id.  569.                 {I)  Sup. 

m)  3  P.  Wms.  322.  (n)  Amb.  33  ;  S.  C,  1  Wils.  82  ;  1  Cox  1. 

(0)  1  B.  C.  C.  U4.  ( p)  Id.  454.                 (?)  3  B.  C.  C.  54o  ;  fe.  C.  1  Cox  82. 

(r    3  Ves.  103.  (J)  Id.  111.                 (0  4  Ves.  816.             (m)  5  Ves.  540. 

(V)  6  Ves.  567.  (x)  9  Ves.  447.                 (y)  2  Sch.  &  Lef.  538. 

(4  1  Ball  &  Bea.  312.  («)  18  Ves.  132.              (6)  1  Mer.  193 ;  S.  C,  Coop.  136. 

(c)  1  Swanst.  28.  (rf)  1  Sim.  79.                  (e)  My.  &  Cr.  763. 

(  f)  2  Vern.  718.  (e)  Free.  Chan.  101.       (A)  1  Eq.  Ca.  Abr.  2il. 

(/)  Forr.  202.  {k)  2  Atk.57.                   (/)  Id.  79 

Im)  2  Atk.  624  ;  S.  C,  1  Wils.  24.                                   (")  Cited  1  B.  C.  C.  145. 

0)  Cited  Id.  456.  ( p)  Id.  60 ;  S.  C,  1  Cox,  245.                     (?)  1  Cox,  2o4. 

(r)  3  Ves.  107.  (s)  Cited  lb.                     (0  11  Ves.  179.                     ^"1^?' 
(:«:)  Andrews  v.  Emmott,  2  B.  C.  C.  29  ;  recognised  in  Standen  v.  Standen,  2  Ves.  jun. 

593 

(V)  Donne  v.  Lewis,  2  B.  C.  C.  256,  distinguishing  Gallon  v.  Hancock,  2  Atk.  424 ; 
Powis  V.  Corbett,  3  Atk.  556.     Sec  also  Davies  v.  Topp,  cited  2  B.  C.  C.  2o9,  n. 

(z)  Pitt  V.  Raymond,  cited  2  Atk.  434. 

(o)  Pitt  V.  Raymond,  sup. ;  Milnes  v.  Slater,  8  Ves.  303. 


(1)  Order  in  which  assets  are  marshalled.  Hays  v.  Jackson,  6  Mass.  l.ol.  Livingston 
V.  Livingston,  3  J.  C.  R.  143.  Livingston  v.  Newkirk,  Id.  319.  31'Campbcll  v.  MKLamp- 
bell,  5  Litt.  95. 


42  CRABB's  LAW  OF  REAL  PROPERTY. 

4.  An  advowson  in  fee  descended  before  freehold  estates  in  fee,  and  lease- 

hold estates  pur  autre  vie  devised. 

5.  Estates  devised  in  trust  to  be  sold  for  the  payment  of  debts,  then  estates 

specifically  devised  and  charged  with  debts,  and  lastly  the  estate 
descended. (6) 

6.  A  descended  estate  was  held  liable  to  pay  off  the  mortgage,  with  which 

a  devised  estate  was  charged,  (c) 

[  *37  ]  *4.  Marshalling  Assets. 

51.  Marshalling  assets  properly  includes  what  has  been  stated  with  regard 
to  the  order  of  their  application  ;(rf)  but  the  term  is  more  particularly  applied 
to  those  cases  where  one  claimant  has  two  funds  to  resort  to,  and  another 
claimant  has  only  one,  in  which  cases  a  court  of  equity  exercises  its  jurisdic- 
tion, in  so  applying  the  funds  that  all  the  claimants  may  be  satisfied  out  of 
the  assets  as  far  as  they  will  go  ;(e)(l )  as  if  there  is  a  debt  owing  to  the  queen, 
equity  will  order  it  to  be  paid  out  of  the  real  estate,  that  other  creditors  may 
have  satisfaction  of  their  debts  out  of  the  personal  assets.[f^  The  court 
interposes  in  two  wa\^s,  either  by  turning  the  person,  who  has  the  double 
security,  upon  that  fund,  which  is  not  liable  to  the  other  claimants'  demand, 
so  as  to  leave  the  other  fund  open  ;(g")  or,  if  satisfaction  has  already  been 
taken  out  of  this  fund  by  the  party  having  the  double  security,  then  by 
decreeing  the  other  party  to  stand  in  his  place,  and  draw  from  the  remaining 
fund  as  much  as  has  been  taken  from  the  first  mentioned,  therefore  where  a 
mortgagor  mortgages  two  estates  to  one  person,  and  afterwards  one  only  of 
the  estates  to  a  second  mortgagee,  who  had  no  notice  of  the  first,  the  Court, 
in  order  to  relieve  the  second  mortgagee,  have  directed  the  first  to  take  his 
satisfaction  out  of  that  estate  which  is  not  in  mortgage  to  the  second  mort- 
gagee ;(/t)  so,  where  executors  have  paid  specialty  creditors  secured  on  the 

(Ji)  Donne  v.  Lewis,  sup.     See  also  Manning  v.  Spooner,  3  Ves.  114, 
(c)  Galto  V.  Hancock,  sup. 

id)  See  supra,  §  50.  {e)  Aldrich  v.  Cooper,  8  Ves.  388. 

■  ( /)  Sagitary  v.  Hyde,  1  Vern.  455. 

(ff)  Povy's  case,  2  Frcem.  51 ;  Feverstonc  v.  Scetlc,  3  Salk.  83. 
{h)  Lanoy  v.  Athol  (Duke),  2  Atk.  446. 

(1)  This  is  a  principle  of  equity  independent  of  the  forms  of  administration  of  justice. 
Kvner  v.  Kyner,  6  W.  223.  WartlloW  v.  Gray,  Dudley  Eq.  Ca.  113.  Brinkerlioff  v.  Mar- 
viiic,  5  J.  C.  U.  324.  1  Story  Eq.  ss.  493.  633.  637.  Alston  v.  Munford,  1  Brock.  279. 
And  it  will  be  exercised  by  compelling  the  parties  having  two  funds  to  seek  satisfaction 
out  of  that  on  which  another  creditor  has  no  lien,  as  well  inter  vivos  as  otherwise.  Clowes 
V.  Woods,  5  J.  C.  R.  239  ;  Hawley  v.  Mancius,  7  J.  C.  R.  183-4 ;  Gill  v.  Lyon,  1  Id.  447 ; 
Evertson  v.  Booth,  20  J.  R.  498  ;  this  principle  may  be  considered  settled  in  Pennsylvania 
without  reference  to  the  chancery  powers  of  tlie  court,  Harrison  v.  Wain,  9  Serg.  &.  R. 
320 ;  Nailer  v.  Stanley,  10  Serg.  &.  R.  450  ;  Bruner's  Appeal,  7  W.  &.  S.  269  ;  Hasting's 
case,  10  Watts,  305;  but,  if  there  be  doubt  as  to  the  sufficiency  of  the  fund,  the  courts 
will  not  restrain  the  right  of  the  party,  Evertson  v.  Bootli,  20  J.  R.  498;  nor  if  delay  will 
ensue,  Tvyner  v.  Kyner,  6  Watts,  226  ;  unless  the  claim  be  paid  or  deposited,  Id. ;  Bricker- 
hotfv.  IMarvuic,  5  J.  C.  R.  324;  nor  in  favour  of  a  volunteer,  Harrison  v.  Wain,  9  Serg. 
&  Rawlc,  320;  and  if  there  be  more  than  one  debtor,  the  equities  between  tlieni  govern 
the  court.  Sterling  v.  Brightbill,  5  Watts,  229.  And  it  may  be  done  by  subrogation  to  the 
security  of  the  other,  tliough  this  will  not  be  done  while  any  part  of  the  debt  remains 
unpaid,  Kyner  v.  Kyner,  supra.  It  was  iiowever  held  in  Feedley's  Appeal,  Dec.  Term, 
1846,  S.  C.  Pcnna,  that  judgment  creditors  might  claim,  in  the  first  instance,  out  of  the 
personal  property,  and  look  for  the  residue  to  their  liens  where  the  estate  was  deficient. 


FUND     FOR     THE     PAYMENT     OF     DEBTS.  43 

real  estate  out  of  the  personalty,  the  simple  contract  creditors  have  been 
decreed  to  have  their  debts  satisfied  out  of  the  land.(i) 

52.  But  this  marshalhng  must  properly  be  as  between  the  real  and  per- 
sonal assets  of  the  deceased,  and  it  has  been  *said  that  the  court  has  ^^^  -. 
no  jurisdiction  to  marshal  the  assets  of  a  person  alive  ;(A;)  yet  it  L 
seems,  that  although  the  term  "  marshal"  is  technically  applied  only  to  assets 
of  a  deceased  person,  the  principle  may,  in  certain  cases,  be  applied  to  tran- 
sactions inter  vivos.[l) 

So,  the  court  cannot  extend  this  rehef  to  creditors  further  than  the  nature 
of  the  contract  will  support,(?n)  if,  therefore,  the  contract  by  specialty  be  such 
as  not  to  affect  the  real  estate,  as  a  bond  not  mentioning  heir,  there  is  no 
marshalling,  as  there  are  not  two  funds,  and  therefore  no  one  is  disappointed 
by  the  option  of  the  other. (n) 

53.  Marshalling  assets  is  admitted  in  favour  of  creditors,  in  favour  of  lega- 
tees, and  in  favour  of  the  widow's  imrapharnalia. 

54.  By  the  common  law  the  simple  contract  debts  of  a  deceased  person 
were  not  paj-able  out  of  his  real  estate,  vmless,  by  his  will  or  otherwise,  he 
made  it  a  fund  for  the  payment  of  his  debts  ;  But  it  was  otherwise  with  the 
creditors  by  specially,  where  the  heirs  were  bound.  The  3  &  4  W.  4,  c. 
104,  which  subjects  all  real  property  to  the  payment  of  simple  contract  debts, 
is  confined  to  such  as  have  died  since  29  Aug.  1833,  and  the  11  G.  4  &  1 
W.  4,  c.  47,(o)  which  prevents  a  testator  from  defeating  the  claims  of  his 
specialty  creditors,  leaves  all  devises  for  the  payment  of  debts  as  they  were 
before,  so  that  the  doctrine  of  marshalling  assets  in  favour  of  creditors  re- 
mains in  full  force  ;  accordingly,  if  there  are  creditors  by  specialty,  and  also 
creditors  by  simple  contract,  and  the  specialty  creditors,  instead  of  resorting 
to  the  real  assets  (which  independently  of  the  act  the  latter  cannot  reach,) 
proceed  against  the  personal  estate,  *the  court  will  then  marshal  the  ^^^  -, 
assets  by  permitting  the  simple  contract  creditors  to  stand  in  the  L 
place  of  the  specialty  creditors  against  the  real  assets,  so  far  as  the  latter  have 
exhausted  the  personal  estate  ;(;j)  and  this  applies  to  an  estate  devised,  as  well 
as  to  an  estate  descended  ;{q)  so,  to  copyhold  as  Avell  as  freehold  estates  ;(r)  so, 
creditors  by  specialty,  although  volunteers,  have  been  allowed,  as  against 
devisees,  to  stand  in  the  place  of  mortgagees,  who  have  exhausted  the  fund 
provided  by  the  testator  for  the  payment  of  debts  ;(s)  so,  in  case  of  bank- 
ruptcy, it  has  been  held  that  the  principle  of  marshalling  assets  was  apph- 
cable  ;{t)  so,  if  the  vendor  of  an  estate,  the  contract  for  which  was  not  com- 

(i)  Charles  v.  Andrews,  9  Mod.  151.  (A-)  Lacam  v.  Jlcrtins,  1  Vez.  312. 

\l)  Aldrich  v.  Cooper,  8  Ves.  389,  recofrnising  Lacam  v.  Mertins,  sup.  See  Sneed  v. 
Culpepper,  2  Eq.  Ca.  Abr.  225  ;  7  Vin.  Abr.  52.  (m)  Lacam  v.  Mertms,  sup. 

(n)  Aldrich  v.  Cooper,  sup.  (o)  See  Dig.  P.  ii.  tit.  Courts  (.Equity). 

(  p)  Wilson  V.  Fielding,  2  Vern.  763. 

{q)  Gallon  V.  Hancock,  2  Atk.  436;  Snelson  v.  Corbet,  3  Atk.  369  ;  Austen  v.  Halsey, 
6  Ves.  475.  ^„ 

(r)  Aldrich  v.  Cooper,  8  Ves.  382,  overruling  Robinson  v.  Tonge,  1  P.  ^V  ms.  bbU,  n., 
Cox's  ed.,  recognised  in  Bute  (Marquis)  v.  Cunynghame,  2  Russ.  288  ;  Gwynne  v.  ±.d- 
wards,  cited  2  Russ.  289,  n.  (s)  Lomas  v.  Wright,  2  My.  &.  K   769. 

(0  Greenwood  v.  Taylor,  1  R.  &.  My.  187,  questioned  in  Mason  v.  Bogg,  ^  My,  in.  Gr. 
443.    And  see  Rome  v.  Young,  3  Y.  &  Coll.  199. 


44  CRABBS  LAW  OF  REAL  PROPERTY. 

pleted  in  tlie  lifetime  of  the  testator,  who  was  the  purchaser,  is  afterwards 
paid  his  purchase-money  out  of  the  personal  assets,  the  simple  contract  cre- 
ditors of  the  testator  shall  stand  in  the  place  of  the  vendor,  with  respect  to  his 
lien  on  the  estate  sold,  against  the  devisee  of  that  estate,(M)  although  in  Coppin 
V.  Coppin(a^)  it  was  holden  that  legatees  could  not  stand  in  the  place  of  the 
vendor  with  respect  to  his  equitable  lien,  and  in  Pollexfen  v.  Moore(?/)  it  was 
said,  in  general  terms,  that  this  equity  did  not  extend  to  third  persons,  being 
confined  to  the  vendor  and  vendee ;  but  on  this  dictum  of  Lord  Hardwicke 
see  Austen  v.  Halsey,(z)  Trimmer  v.  Bayne,(«)  Mackreth  v.  Symmons,(6) 
Headley  v.  Readhead.(c) 

^  -.  55.  "  Legatees  have  not  so  great  a  claim  to  this  species  of  *equity 
L  J  as  creditors,  but  nevertheless,  in  the  case  of  assets  descended,  lega- 
tees will  be  permitted  to  stand  in  the  place  of  specialty  creditors,  who  have 
chosen  to  resort  to  the  personal  estate." (rf)  On  the  other  hand,  where  the 
estate  does  not  descend,  but  is  devised,  whether  to  a  stranger  or  to  the  heir 
taking  as  a  devisee,  and  the  question  is  between  the  legatee  and  devisee,  the 
assets  are  not  marshalled  in  favour  of  legatees,  whether  general(e)  or  specific 
legatees.(/)(l) 

56.  A  distinction  is  also  to  be  taken  where  a  creditor  has  a  lien  on  the 
real  estate,  for  if  it  be  a  specific  lien,  as  a  mortgage,  assets  will  be  marshalled 
in  favour  of  legatees,  as  well  where  the  estate  is  devised,  as  where  it  des- 
cends, therefore  if  the  mortgagee  exhaust  the  personal  assets,  a  pecuniary 
legatee  shall  stand  in  the  place  of  the  mortgagee  upon  the  devised  estate. (^) 
But  if  it  be  an  equitable  lien,  such  as  a  vendor  has  on  the  purchased  estate 
for  the  purchase-money  unpaid,  it  is  now  settled,  after  much  discussion,  that 
where  the  purchased  estate  has  descended,  pecuniary  legatees  have  a  right 
to  stand  in  the  place  of  the  vendor. (/?)  Where  the  purchased  estate  is  de- 
vised, it  is  clearly  settled,  that  a  pecuniary  legatee  shall  not  stand  in  the 
place  of  the  vendor  upon  the  devised  estate,  (i) 

(w)  Selby  V.  Selby,  4  Russ.  336.  (x)  2  P.  Wms.  291 ;  S.  C,  Sel.  Cha.  Ca.  28. 

(y)  3  Atk.  273.  (z)  6  Ve^  475. 

(o)  9  Ves.  209.  0>)  15  Ves.  344. 

(c)  Coop.  50 ;  Cox's  n.  1  to  2  P.  Wms.  295  ;  3  Sugd.  V.  &  P.  205  et  scq.,  10th  ed. 

Id)  Per  Lord  Eldon,  C,  Aldrich  v.  Cooper,  8  Ves.  396.  And  see  Bowaman  v.  Reese, 
Prec.  Chan.  578  ;  Lutkins  v.  Leigh,  Cas.  temp.  Talbot,  54  ;  Hanby  v.  Roberts,  Ainbl.  128; 
S.  C,  nom.  Hamby  v.  Fisher,  Dick.  105,  where  it  was  held  that  the  legatees  sliould  not 
take  cum  onere. 

(r)  Clifton  V.  Burt,  1  P.  Wms.  678  ;  Scott  v.  Scott,  Ambl.  383  ;  S.  C,  1  Eden,  458 ; 
Ilanby  v.  Roberts,  sup. ;  Keeling  v.  Brown,  5  Ves.  359  ;  Aldrich  v.  Cooper,  sup. 

( /)  Hazlewood  v.  Pope,  3  P.  Wms.  324.  But  see  Long  v.  Short,  1  P.  Wms.  403,  where 
it  was  decreed  that  assess  should  be  so  far  marshalled  that  the  devisee  and  specific  legatee 
should,  upon  failure  of  the  personal  estate,  contribute,  each  in  proportion  according  to  his 
respective  gift,  to  the  payment  of  the  specialty  debt.  See,  also,  Irvin  v.  Ironmonger,  2 
RUSS.&,  My.  531. 

is)  Lutkins  v.  Leigh,  Cas.  temp.  Talbot,  53  ;  Forrester  v.  Leigh,  Ambl.  171. 

(//)  Sproule  V.  Prior,  8  Sim.  189,  overruling  Coppin  v.  Coppin,  2  P.  Wms.  296.  See  also 
the  dictum  of  Lord  Hardwicke  in  Pollexfen  v.  Moore,  ante,  tj  54,  in  respect  of  creditors. 

(t)  Wyth  V.  Henniker,  2  My.  &  K.  635.     See  also  Selby  v.  Selby,  sup. 


(1)  S.  P.  Mollan  v.  Griffith,  3  Paige,  C.  R.  404. 


I 


RECIPROCAL    CONVERSION    OF     MONEY     AND    LAND.  45 

57.  *In  some  other  cases  it  has  been  held,  that  assets  shall  be  mar-  (-*.,-, 
shalled  in  favour  of  legatees,  as  where  the  real  estate  is  subjected  by  L  -' 
the  testator  to  the  payment  of  all  his  debts,  the  legatees  are  allowed  to  stand 
in  the  place  of  the  specialty  or  simple  contract  debtor,  to  the  amount  of  the 
personalty  exhausted  by  the  debts,  and  to  receive  their  legacies  out  of  the 
estate  devised. (^)  So,  where  some  legacies  are  charged  on  the  real  estate, 
and  others  not,  the  assets  will  be  marshalled  in  favour  of  the  legatees  whose 
legacies  are  not  so  charged. (^) 

58.  A  legacy  given  to  charitable  uses  is  void  by  the  9  Geo.  2,  c.  36,  if 
made  payable  out  of  real  estate, (?n)  or  out  of  the  produce  of  the  sale  which 
the  testator  has  directed  to  be  made  of  the  real  estate  ;(n)  so,  where  the  legacy 
is  bequeathed  out  of  personalty,  and  out  of  the  real  estate,  as  an  auxiliary 
fund,  it  is  so  far  void  as  it  is  given  out  of  the  realty. (o)  Formerly,  a  distinc- 
tion was  taken  between  a  particular  legacy  and  a  residuary  gift,  and  assets 
were  marshalled  in  favour  of  the  former  ;(;j)  but  by  a  series  of  cases,  it  is 
now  settled  that  there  can  be  no  marshalling  assets  in  favour  of  a  charitable 
bequest,  as  this  would  be  an  evasion  of  the  statute. (y)(l) 

59.  A  wife's  paraphernalia  are  liable  to  the  debts  of  the  husband,  but  a 
court  of  equity  will  marshal  his  assets  in  her  favour;  and  where  the  per- 
sonal estate  has  been  exhausted  *by  specialty  creditors,  will  decree  ._  -. 
her  to  stand  in  their  place,  and  receive  to  the  value  of  the  parapher-  "-  -^  ■ 
nalia  out  of  the  real  estate  descended,(r)  or  out  of  real  estate  devised  bj'  the 
husband  for  the  payment  of  his  debts  ;(s)  for  a  claim  of  paraphernalia  shall 
not  be  disappointed  by  the  effect  of  the  option  of  a  creditor  having  a  double 
fund  to  resort  to  in  the  administration  of  asse^s.(?)(2) 


SECTION  III. 

RECIPROCAL  CON\'ERSION  OF  ONE  INTO  THE  OTHER. 
§  60.  Rule  in  Equity. 

(A)  Hanby  v.  Roberts,  sup. ;  Foster  v.  Cook,  3  B.  C.  C.  347 ;  Bradford  v.  Foley,  Id.  351 ; 
and  Webster  v.  Alsop,  Id.  n. 

(/)  Hanby  v.  Roberts,  sup. ;  Bligh  v.  Darnley  (Earl),  2  P.  Wms.  619  ;  Bonner  v.  Bonner, 
13  Ves.  37'J. 

(/w)  Arnoid  v.  Chapman,  1  Ves.  108 ;  cited  3  B.  &  A.  150. 

(ft)  Foster  V.  Blagden,  Ambl.  704  ;  Hillyard  v.  Taylor,  Id.  713. 

(o)  Attorney-General  v.  Weymouth  (Lord),  Ambl.  20. 

Ip)  lb. ;  and  Attorney-General  v.  Mountnorris  (Lord),  1  Dick.  379. 

0/)  Mogg  V.  Hodges,  2  Ves.  52  ;  S.  C,  Cox,  9  ;  Attorney-General  v.  Tyndall,  Ambl.  614  ; 
S.  C,  2  Eden,  207  ;  Foster  v.  Blagden,  sup. ;  Fory  v.  Fory,  1  Cox,  163 ;  Ridges  v.  Morris- 
son,  Id.  180 ;  Attorney -General  v.  Hurst,  2  Cox,  364 ;  Makeham  v.  Hooper,  4  B.  C.  C. 
153  ;  Hobson  v.  Blackburn,  1  Keen,  273  ;  Williams  v.  Kershav.',  Id.  274,  n. 

(»•)  Snelson  v.  Corbet,  3  Atk.  369.  (s)  Inclcdon  v.  Northcote,  Id.  430. 

(0  Aldrieh  v.  Cooper,  8  Ves.  397. 


(1)  S.  P.  in  West  v.  Methodist  Church,  1  HofF.  203,  for  the  same  reason,  i.  c.  a  statute 
of  mortmain. 

(2)  Mass.  R.  S.  ch.  65,  s.  4. 


46         crabb'slaw  of  real  property. 

I.  ©onbccsfon  of  i^oncw  fnto  2.anti. 
1.  How  the  Conversion  may  he  effected. 


§  61.  Effected  in  various  Ways. 

When  complete  or  otherwise. 
In  the  case  of  a  Will. 


61.  Not    necessary  for    Money  to  be  ac- 
tually laid  out. 

Money  may  remain  in  Hand  or  be 
put  out  to  Mortgage. 


2.  Effect  of  the  Conversion. 


62.  General  Rule. 

In  case  of  Dissent. 
Exceptions. 


62.  On  failure  of  Heirs  not  to  escheat. 

63.  In  case  of  Purchase. 

64.  In  case  of  Devise. 


3.  Right  of  Election. 


65.  By  Person  who  is  complete  owner.  1    67.  By  Tenant  in  Tail. 

66.  By  Persons  under  Disabilities.  | 

II.  ©onbcrsfon  of  2.:Tn^  into  Mone». 


1.  How  effected. 


69.  By  Deed. 

By  Contract. 
Trust  by  Will. 


69.  Partial  Conversion. 

Devise  to  Executors. 


[*43]  *2.  Effect  of  the  Conversion. 

70.  As  to  the  Devolution  of  the  Property.      I  73.  Between  Heir  and  Residuary  Legatee. 

71.  In  cases  of  Devises  to  Executors.  |   74.  Between  Representatives. 

72.  Questions   between  Heir   and  Next  of;  75.  Quality  of  Property  resulting. 

Kin.  1  76.  Time  of  the  Conversion,  Effect  of. 

3.  Election. 
77.  Where  devised  in  Trust  to  be  sold. 

III.  Conbccsion  in  cases  of  Enf  mts,  Hunatics,  antJ  iJartncrs. 

78.  Rule  as  to  Infants'  Estates.  I  78.  Partner's  Estates. 

Lunatics'  Estates. 


§  60.  It  is  a  rule  in  equity,  that  what  has  once  been  agreed  or  directed 
to  he  done,  ought  to  be  done,  and  what  ought  to  be  done,  shall  be  considered 
as  really  done. (h)(1)  According  to  this  rule,  therefore,  it  is  that  money 
stipulated  to  be  converted  into  land,  shall  be  considered  as  land  ;  and  on  the 
other  hand,  land  stipulated  to  be  converted  into  money  is  considered  as 
money.  This  subject,  therefore,  branches  itself  into  two  heads,  conversion 
of  money  into  land,  and  land  into  money,  which,  although  having  many 

(m)  1  Bl.  129  ;  Walker  v.  Denne,  2  Ves.  Jun.  183. 

(1)  Peter  v.  Beverley,  10  Pet.  563.     Craige  v.  Leslie,  3  Wheat.  578.     Burr  v.  Sim,  1 
Whart.  262. 


CONVERSION    OF     MONEY    INTO    LAND.  47 

points  in  common,  cannot  be  set  forth  clearly  but  by  considering  them 
distinctly  ;  to  Avhich  may  be  added,  as  a  third  head,  conversion  either  way, 
in  cases  of  infants,  lunatics,  and  partners. 


I.  ©ou^ersioit  of  fHoiify  mto  aautr. 

This  is  to  be  considered,  1.  As  to  how  the  conversion  is  effected, 
and  when  deemed  complete ;  2.  Effect  of  the  conversion ;  3.  Right  of 
election. 

*1.  Hoio  the  Conversion  is  effected.  [*44] 

61.  Money  may  be  converted  into  land  in  different  ways,  declaring  the 
intention  of  the  parties,  as  by  way  of  contract,(x)  by  marriage  articles,(^) 
and  by  will.(z)  Where  it  is  by  contract  or  by  a  settlement,  it  must,  in  order 
to  be  complete,  be  a  contract  which  equity  will  enforce  ;  therefore,  if  the 
terms  of  the  contract  cannot  be  ascertained, («)  or  there  have  been  fraud, (6) 
or,  if  there  be  an  option  left  in  either  of  the  parties  to  complete  or  recede 
from  the  agreement  at  his  discretion,  in  either  of  these  cases  the  property 
will  remain  unaltered,  as  if  no  stipulation  had  been  made  ;(c)  but  in  respect 
of  an  option,  it  is  to  be  observed,  that  if  trustees  in  a  settlement  are  directed 
to  lay  out  money  in  land,  upon  the  request  of  the  parties,  this  latter  part  of 
the  provision  does  not  make  it  optional  in  them  to  lay  it  out  or  not,  in 
the  event  of  no  request  being  made.(rf)  In  the  case  of  a  will,  that  being 
ambulatory,  the  conversion  is  not  complete  until  the  testator's  death,  and 
until  then  the  money  will  be  deemed  personalty,  notwithstanding  a  devise 
to  lay  it  out  in  land.(e)  So,  where  it  is  by  will,  the  will  must  decisively 
fix  upon  the  money  the  quality  of  land  ;(/)  and  where  it  is  a  deed,  the 
deed  must  do  the  same.(/) 

Where  the  conversion  is  in  other  respects  complete,  it  is  immaterial 
Avhether  the  money  be  actually  laid  out  or  not,(^)  unless  when  the  money  is 
in  the  hands  of  the  person  who  would  have  been  entitled  to  the  land,(/^)  or 
the  *parties  died  before  the  expiration  of  the  time,  when  according  p  4(45-1 
to  the  covenant,  the  money  ought  to  have  been  invested. (/)  L 

So,  it  is  immaterial  if  the  money  remain  in  the  hands  of  the  stipulator  •,{k) 
or  if,  instead  of  being  laid  out,  it  be  put  out  to  mortgage.(/)  So,  where  the 
money  is  in  the  hands  of  trustees  for  the  purpose  of  being  laid  out,(7n)  and 

(z)  Edwards  V.  Lady  Warwick,  2  P.  Wins.  171;  Fletcher  v.  Asliburncr,  1  B.  C.  C. 
497,  recognised  in  Wlieldale  v.  Partridge,  5  Ves.  396. 

(//)  Kettlcby  V.  Atwood,  1  Vcrn.  298;  Lancy  v.  Faircliild,  2  Vcrn.  101 ;  Thornton  v. 
Hawlcv,  10  Ves.  1.30.  (s)  Lecliuierc  v.  Carlisle  (Lord,)  3  P.  Wms.  228. 

{a)  Savage  v.  Carroll,  1  Ball  &  Bea.  26.5. 

{h)  Philips  V.  Bucks  (Duke,)  1  Vern.  227. 

(r)  Walker  v.  Denne,  2  Ves.  jun.  170,  recognised  in  Wheldale  v.  Partridge,  5  Ves.  Jb8. 

(./)  Thornton  v.  Hawley,  10  Ves.  130.  (f)  Bcauclerk  (Lord)  v.  l^lcad,  2  Atk.  167. 

(/)  Walker  v.  Denne,  sup.  (g-)  Lechmere  V.Carlisle,  3  P.  ^^  ms.  ^24. 

(A)  Rashley  v.  Masters,  1  Ves.  jun.  201. 

(()  Chichester  v.  Biekerstafi;  2' Vern.  299,  recognised  and  distinguished  in  Lechmere  v. 
Carlisle,  sup.,  and  Pultcny  v.  Darlington,  1  B.  C.  C.  223. 

(/.•)  Chaplin  v.  Horner,"l  P.Wins.  483. 

(Z)  Rashley  v.  Masters,  3  B.  C.  C.  99  ;  S.  C.  1  Ves.  jun.  201. 

(m)  Thornton  v.  Hawley,  sup. 


48  CRABBS     LAW     OF     REAL     PROPERTY. 

SO  where  the  stipulatioa  is,  that  the  money  should  be  laid  out  with  the 
consent  of  the  husband  and  his  wife  ;  yet,  if  one  die  before  consent  given, 
the  money  will  still  be  bound  by  the  stipulation. (n)  So,  where  there  is  a 
covenant  to  lay  out  money  in  land,  it  makes  no  dilierence  that  the  covenant 
is  a  voluntary  one.(o) 

2.  Effect  of  the  Conversion. 

62.  As  a  rule  money  stipulated  to  be  converted  into  land,  becomes  clothed 
with  all  the  properties  of  land,  but  this  rule  is  subject  to  distinctions  arising 
from  different  circumstances,  particularly  whether  the  conversion  has  been 
complete  or  not,  and  the  Uke. 

One  of  the  principal  consequences  of  money  being  thus  converted,  is,  that 
it  will  descend  to  the  heir  of  the  owner,  instead  of  going,  as  it  otherwise 
would  to  the  personal  representatives. (/))(!)  The  exceptions  to  this  rule 
are  where  the  contract  was  such  as  could  not  be  enforced  in  equity,(5)  or 
^  the  parties  have  died  before  the  time  for  completing  the  *conver- 
L  -'  sion  ;(r)  but  it  is  not  necessary,  where  money  is  agreed  or  directed 
to  be  laid  out  in  land,  that  the  deed  or  ^x-ill  should  decisively  and  definitely 
fix  upon  the  money  the  quality  of  land,  therefore,  where  a  testator  directed 
money  to  be  laid  out  in  freehold  or  leasehold  land,  emd  the  money  was  not 
laid  out,  it  was  held  that  the  Crown,  on  failure  of  heirs,  had  no  equity 
against  the  next  of  kin  to  have  it  laid  out  in  real  estate  in  order  to  claim  it 
by  escheat,  (s) 

63.  If  the  owner  of  money,  directed  to  be  laid  out  in  land,  die  before  the 
proper  conveyances  are  perfected,  the  contract  must  notwithstanding  be  com- 
pleted. (A  So,  money  stipulated  to  be  laid  out  in  land  was  not  deemed  per- 
sonal assets  for  the  payment  of  debts  before  the  3  &  4  W.  4,  c.  104.(w) 
So,  if  money  thus  circumstanced  happen  to  be  invested  in  mortgage,  and  the 
mortgagee  die,  and  the  money  be  repaid,  it  must  be  paid  to  the  heir  and 
not  to  the  executors  of  the  mortgagee.(M)  So,  too,  a  husband  will  be  tenant 
by  the  curtesy  of  money  agreed  to  be  invested  in  land,  and  therefore  entitled 
to  receive  the  dividends  or  interest  during  his  life,(a:)  but  a  woman  is  not  in 
the  like  case  entitled  to  dower.(i') 

64.  Money  articled  to  be  laid  out  in  land  will  pass  in  a  devise  under  the 

(n)  Symons  v.  Ratter,  2  Vera.  227.  (o)  Edwards  v.  Wannck  (Lady,)  sup. 

(p)  Cunningfham  v.  Moody,  1  P.  Wms.  176;  Simonds  v.  Rutter,  2  Vem.  227 ;  S.  C, 
Prec.  Chan.  23  ;  Lancy  v.  Fairchild,  2  Vera.  101 ;  Edwards  v.  Warwick  (Lady,)  2  P. 
Wms.  171.  See  also  Kettlebv  v.  Atwood,  1  Vera.  228  ;  Ling-uen  t.  Sourav,  Prec.  Ciian. 
400 ;  S.  C,  nom.  Lingen  v.  So'wray,  1  P.  Wms.  172  ;  GLlb.  325  ;  10  Mod.  39.  528. 

(q)  Plullips  V.  Bucks  I'Duke,)  1  Vern.  227  ;  Walker  v.  Demie,  2  Ves.  jun.  170;  Savage 
V.  Carrill,  1  BaU  &  Bea.'265. 

(r)  Chichester  v.  Bickerstaff,  2  Vera.  295.     And  see  supra,  5  61. 

Is)  Walker  v.  Denne,  2  Ves.  jun.  170.         (/)  Pembroke  v.  Baden,  Gilb.  Chan.  Rep.  115. 

(u)  Baden  v.  Pembroke  (Earl.)  2  Vera.  52 ;  Lawrence  v.  Beverley,  2  Keb.  841,  cited 
2  Vem.  55. 

(or)  Sweetapple  v.  Binden,  2  Vern.  536  ;  Otway  v.  Hudson,  Id.  583 ;  Cunningham  v. 
Moody,  1  Vez.  176. 

(1)  Peter  v.  Beverly,  10  Pet.  563. 


C  0  K  V  E  R  S  I  0  K     OF     MONET    INTO     L  A  K  D.  49 

general  words,  "  lands,  tenements,  and  hereditaments  ;"(y)  and  alihong-h  a 
fine  could  not  have  been  levied  if  money  were  so  circumstanced,  yet,  where 
a  feme  covert  entitled  to  such  money  came  into  court,  and  was  separately 
examined,  analogous  to  the  form  of  a  fine  at  law,  the  coim  would  decree  it  to 
her.(r) 

»3.  Ri2ht  of  Election.  [*47] 

65.  "Where  money  is  directed  to  be  laid  out  in  land,  of  which  a  person 
would  be  complete  owner,  if  the  investment  were  made,  the  court  will  in 
general  allow  the  party  to  take  the  money  instead  of  the  land,  provided  he 
express  an  unequivocal  intention  so  to  do  :^cr)  and  it  seems  that  slight  circum- 
stances are  sufficient  to  indicate  such  intention,  and  therefore  bequeathing  it 
by  a  will  calculated  to  pass  personal  property  only,  was  held  to  be  sufficient 
indication,(t)  or  describing  it  as  "  so  much  money  directed  to  be  laid  out  in 
land,"(c)  or  calling  in  the  money  and  placing  it  out  on  other  securities,  which 
would  carry  it  to  the  executors,(rf)  or  giving  the  trustees  a  discharge  for  the 
money  as  "  so  much  monej"  ;"(e)  but  a  parol  declaration  has  been  deemed, 
sufficient  evidence  of  such  election. (y) 

66.  An  infant  is  incapable  of  electing  ;(§')(!)  therefore,  if  an  infant  became 
so  entitled,  and  died  an  infant,  the  monej-  would,  as  land,  descend  to  his 
heir,  and  not  pass  under  a  bequest  of  personalty  in  his  will,  (which  he  was 
capable  of  making  before  the  late  Wills  Act,  7  W.  4  &  1  V.  c.  26.)  A 
feme  covert  before  the  3  &  4  W.  4,  c.  74.  abolishing  Fines  and  Recoveries, 
could  not  obtain  money,  articled  to  be  laid  out  in  land,  in  any  other  manner 
than  bv  consentinof  in  open  court  to  take  it  as  personal  property. (A) 

67.  Before  the  39  &  40  G.  3.  c.  5G,  repealed  by  7  G.  4,  c.  45.  and  both 
by  the  3  &  4  W.  4,  c.  74,  s.  70,  if  the  part}-  being  adult,  could,  by  fine 
levied,  acquire  the  entire  interest  in  the  lands  when  settled,  (as  tenant  in  tail 
with  ♦immediate  remainder  to  himself  in  fee,)  the  court  would  let  ^  -, 
him  take  the  money,  if  he  should  so  elect  ;  but  otherwise,  if  a  L  J 
recovery  were  necessarv.  as  in  the  case  of  tenant  in  tail,  with  remainder 
over.(n  By  the  first  of  these  statutes  the  court  was  authorised  to  order  such 
money  to  be  paid  to  the  person  who,  as  tenant  in  tail,  could  have  barred  the 
remainder  by  a  recovery.     As  to  the  provisions  in  the  last  of  these  acts,  see 

(»/)  Linoen  v.  Sowray,  1  P.  Wms.  172;  Guidot  v.  Gaidot,  3  Atk.  254  ;  Rasliley  v. 
Masters,  1  Vcs.  jun.  201.  :)  CunnLnffham  v.  Moody,  sup. 

(a)  Lingrn  v.  Sowray,  sap. ;  Benson  v.  Benson,  1  P.  Wms.  130 :  Edwards  v.  Warw ick 
(Countess,)  2  P.  Wms.  175  ;  Rashley  v.  Jlasters,  1  Vcs.  jun.  204. 

(i)  1  B.  C.  C.  237  ;  Ambl.  -223. 

(c)  Fulham  v.  Jones,  3  P.  Wms.  221 :  Cross  t.  Addenbroke,  3  Atk.  254.  See  also 
Rashley  v.  Masters,  sup.  Id)  Lingen  v.  Sowrav,  sup. 

(e)  Chaplin  v.  Homer.  1  P.  Wms.  4S3 ;  Pultener  v.  Darlington  (Earl,)  1  B.  C.  C.  224. 

(/)  Bradish  v.  Gee,  Ajnbl.  22.  (g)'Sealy  v.  Jajo,  1  P.  Wms.  389. 

(A)  See  supra,  6  64. 

(i)  Short  V.  Wood,  I  P.  Wms.  471  ;  Edwards  v.  Warwick  (Ladv,)  sup. ;  Oldham  v. 
Hughes,  2  Atk.  453 ;  Trafibrd  v.  Boelmi,  3  Atk.  447  ;  Cunningham  v.  Moody,  1  Vcs.  176. 


1    Robertson  v.  Stephens,  1  Ircd.  251.     Burr  r.  Sim,  1  Wh.  265. 
Jllv,  1S46. i 


50  CRABB's     LAW     OF     REAL     PROPERTY. 

Prec.  in  Conv.  Append.  No.  X.,  3rcl  ed.  ;  and  Dig.  P.  ii.  tit.  Fines  and 
Recoveries.  As  to  the  conversion  of  money  in  cases  of  infancy,  see  post, 
§  78. 


II.  (STouiJcrsiou  of  Jinnt}  into  J^onfi>. 

68.  The  conversion  of  land  into  money  may  also  be  considered  under  the 
same  three  heads  as  before  mentioned. (A; j 

1.  Hoiv  ejected. 

69.  This  conversion  is  effected  in  three  ways :  First,  by  deed,  as  where 
a  person  conveys  his  land  to  trustees  for  the  payment  of  his  debts,  or  other- 
wise ;(A  Secondly,  by  contract, as  where  a  vendor  contracts  to  sell  his  estate  ;(1 ) 
in  which  case,  although  the  vendor  dies  before  the  conveyance,  the  property 
will  be  deemed  converted  from  the  time  of  the  contract ;(/»)  Thirdly  a  trust 
to  sell  real  estate  may  be  created  by  will,  and  may  cause  a  conversion,  either 
for  a  particular  purpose  only,  as  to  pay  debts  or  legacies,  or  both  ;(n)(2) 
and  sometimes  the  trust  is  to  sell  for  general  purposes,  which  has  been 
termed  a  conversion  "  out  and  out."(o)(3)    Very  frequently,  lands  are  devised 

,„-,  to  executors  *to  sell;  and  a  distinction  has  been  taken  as  to  when 
L  -*  they  take  an  interest  or  have  only  a  power.  A  devise  of  the  lands 
to  executors  to  sell  is  said  to  pass  the  interest  in  the  land  ;  but  a  devise 
"  that  executors  shall  sell,"  or  "  that  the  lands  should  be  sold  by  the  execu- 
tors," is  said  to  give  them  but  a  power  ;  a  nice  distinction,  which  has  caused 
some  discussion. (;;) 

*  2.  Effect  of  the  Conversion. 

70.  When  the  conversion  of  land  into  money  has  been  completed,  the 
money  is  clothed  with  all  the  properties  of  personalty  ;  therefore,  where  the 
will  operated  as  a  conversion  of  the  real  estate,  the  shares  of  persons,  who 
were  dead,  devolved  on  their  personal  representatives. (5)(4)      But   many 

(fr)  See  ante,  §  60.  (/)  Hewitt  v.  Wriglit,  1  B.  C.  C.  86. 

(m)  Riploy  v.  VVatcrwortli,  7  Vis.  437.  (n)  Dixon  v.  Dawson,  2  Sim.  &  Stu.  327. 

(o)  See  Policy  v.  Seyniour,  2  You.  &  Col.  708. 

(/>)  Sec  1  Inst.  113,  a.,  and  Hargravc's  note  thereon ;  1  Sugd.  on  Powers,  133,  6th  cd. ; 
1  Powell  on  Devises,  243,  by  Jarman. 
{q)  Grieveson  v.  Kirsopp,  2  Keen,  653. 


(1)  Hclfenslcin  v.  Wn;:rgoncr,  13  S.  &  R.  307  ;  but  not  by  an  agreement  with  the  tenant 
in  common  to  effect  a  sale  of  both  interests.    Id. 

(2)  Wright  v.  Methodist  Ch.,  1  Hoff.  C.  R.  219.  Where  it  is  not  absolute  but  for  parti  - 
cular  purpose,  surplus  is  treated  as  land.  North  v.  Valk,  Dudley,  Eq.  Rep.  212 — 16. 
Burr  V.  Sim,  1  Wht.  262. 

('.i)  Proctor  V.  Frebee,  1  Ircd.  143,  or  a  direction  to  pay  over  the  residue.  Burr  v.  Sims, 
1  Wht.  252.  Or  if  blended  with  personalty,  and  treated  as  a  connnon  fund.  Id.  Nor 
will  a  mere  direction  to  settle  a  surplus  as  the  land  was  devised,  impress  it  with  the 
character  of  lind  in  the  hands  of  the  legatee.     Wharton  v.  Shaw,  3  \V.  &  S.  126. 

(4)  A  husband  would  take  as  administrator  to  his  wife.  Reed  v.  Buckley,  5  W.  &•  S 
517.     And  the  court  consider  it  done  for  tlie  purpose  of  deciding  all  the  estates  taken  and 


I 


CONVERSION  OF  LAND  INTO  MONEY.   *         51 

queslions  have  arisen,  as  to  whether  the  conversion  was  complete  or  other- 
wise, and  also  as  to  the  time  when  the  conversion  has  taken  effect. 

71.  Where  lands  are  conveyed  or  devised  to  trustees  for  general  purposes, 
that  is,  where  the  conversion,  as  before  mentioned,  is  "  out  and  out,"  and  it 
appears  clearly  to  have  been  the  intention  of  the  testator  to  impress  on  it  the 
character  of  personal  estate  to  all  intents  and  purposes,  the  mere  appointment 
of  an  executor  will  be  sufficient  to  carry  the  property  to  him.(?-) 

Where  the  conversion  is  directed  to  be  made  for  particular  purposes,  as 
the  payment  of  debts  and  legacies,  and  the  objects  of  the  trust  have  been 
satisfied,  or  have  failed,  so  much  of  it  as  has  not  been  applied  in  satisfaction 
of  the  trusts,  will  result  to  the  grantor  in  the  case  of  a  conveyance, (.s)  or  to 
the  heir,  or  the  residuary  legatee,  &c.,  as  a  resulting  trust  under  a  will  ;  in 
respect  of  which,  however,  many  questions  have  arisen  as  to  the  intentions 
of  the  testator,  *whether  they  were  to  convert  the  property  wholly,  ^_  -. 
or  in  part  only.     These  questions  have  arisen  between  the  heir  and  L  -^ 

next  of  kin,  between  the  heir  and   the  residuary  legatee,  or  between  the 
representatives  of  these  parties. 

72.  The  cases  as  between  the  heir  and  the  next  of  kin  seem  to  turn  upon 
the  point,  whether  tlie  testator  meant  to  confine  the  conversion  to  the  parti- 
cular purpose  named  or  mentioned  in  the  will,  or  whether  the  produce  of 
the  real  estate  should  be  taken  as  personalty,  whether  such  purposes  lake 
effect  or  not ;  for  unless  the  testator  sufficiently  declared  his  intention,  that 
in  all  cases,  and  to  all  purposes,  it  should  be  converted,  so  much  thereof  as 
was  not  efleclually  disposed  of  would  result  to  the  heir.(/)(n  The  case  of  Ogle 
V.  Cook,(t<)  seems  to  be  the  only  one  where  the  decision  was  in  favour  of  the 
next  of  kin  and  against  the  heir  ;  and  that  decision  rested  on  the  expressed 
intention  of  the  testator.  As  a  rule,  it  has  been  laid  down,  and  rather  strictly 
adhered  to,  that  where  it  is  a  measuring  cast  between  an  executor  and  an 
heir,  the  heir  shall  have  the  preference  :(f)  for  an  heir  shall  not  be  disin- 
herited, unless  by  express  words  or  necessary  implication  ;[x)  and  it  seems 
now  to  be  settled,  that  unless  the  next  of  kin  is  made  a  specific  donee,  he 
never  can  stand  in  competition  with  the  heir. 

73.  As  between  the  heir  and  the  residuary  legatee  the  rule  has  been 
somewhat  relaxed  in  favour  of  the  lalter,(y)  *and  in  a  subsequent  ^^.-,  -i 
case  it   has  been  held  as  settled  that  if  an  estate  is  devised,  charged  L         -* 

(r)  Berry  v.  Uslier,  11  Vcs.  91.  (s)  Hewitt  v.  Wright,  sup. 

(()  Randall  v.  Bookey,  Prec.  Chan.  162;  Eml)lyn  v.  Freeman,  lb.  540;  City  of  London 
V.  Garway,  2  Vern.  571  ;  Cruse  v.  Barley,  3  P.  Wms.  20  ;  Stonehouse  v.  Evelyn,  lb.  252; 
Digby  V.  Lcgard,  cited  in  Mr.  Cox's  note  to  Cruse  v.  Barie}-,  sup. ;  Arnold  v.  C'liai)nian,  1 
Ves.  108:  Accroid  v.  Smitlison,  1  B.  C.  C.  503;  llobinson  v.  Taylor,  2  lb.  581);  Spink  v. 
Lewis,  3  lb.  355  ;  Chitty  v.  Parker,  4  B  C.  C.  411  ;  S.  C,  2  Vcs.  jun.  271  ;  Wilson  v. 
Major,  11  Vcs.  205  ;  Hill  v.  Cock,  1  Ves.  &.  B.  173;  Dixon  v.  Dawson,  2  Sim.  A:  St.  327. 

(a)  Cited  I  B.  C.  C.  502.  («)  Lingen  v.  Sowray,  1  1'.  Wms.  172. 

(x)  Gascoigne  v.  Barker,  3  Atk.  823 ;  Amplilett  v.  Parke,  2  My.  i^  K.  73. 

((/)  Mallabar  v.  Mallabar,  Ca.  temp.  Talb.  79  ;  Duroure  v.  Motteu.^,  1  Vez.  320. 

the  validity  of  the   bequests.     Gott  v.  CoV.;,  7  Paig.  534.     Wliarton  v.  Sliaw,  3  W.  tk  S. 
124. 

(1 )  ante,  48,  n,  1. 


52  •       crabb's   law   of   real   property. 

with  legacies  ihvd  feil,  the  devisee  or  residuary  legatee  and  not  the  heir 
should  have  the  benefit, (.cr^i  on  the  authority  of  which  cases  it  was  held  in 
Amphlett  v.  Parke, (a)  that  where  the  terms  of  the  will  afforded  the  inference 
that  it  was  the  testator's  intention  that  the  produce  of  his  estate  should  have 
all  the  properties  of  personally  the  legatees  should  have  it  to  the  exclusion 
of  the  heir,  but  this  decision  was  reversed  on  appeal. (^) 

74.  The  third  class  of  cases  is  between  the  representatives  of  persons 
entitled  under  a  will,  and  the  rule  is  that  such  persons  shall  take  money  as 
land  or  land  as  money,  according  as  the  person,  whose  representatives  they 
are,  would  have  taken  it,  had  the  title  accrued  in  their  lifetime. (c) 

75.  Another  question  connected  with  this  subject  is  whether  the  property 
so  resuking  shall  be  considered  as  land  or  money,  in  the  hands  of  the  heir. 
In  one  case  where  a  testator  directed  his  personal  estate  to  be  convened  into 
real,  for  several  purposes,  some  of  which  failed,  it  was  held  that  the  heir 
was  entitled  to  take  the  residue,  after  satisfying  the  purposes  which  could 
take  effect,  not  as  personalty  impressed  with  the  character  of  really. (J)  In 
cases  of  converting  land  into  money,  where  the  question  has  more  I'rtquently 
arisen,  it  has  been  expressly  held,  where  the  trust  was  created  by  a  convey- 
ance, that  the  surplus  after  satisfying  the  purposes  of  the  trust  should  result 
to  the  grantor  as  personally  and  go  to  his  executors. (c)     So,  where  a  man 

^,_  -,  contracts  to  sell  his  land  and  dies  before  the  conveyance,  *the  heir 
L    "^    J  shall  convey  the  land,  and  the  money  shall  go  to  the  executor, (/) 

Where  the  trust  has  been  created  by  a  will  the  rule  appears  to  be,  that 
where  there  is  a  partial  fiiilure  only  of  the  purpose  to  which  tlie  produce  of 
the  sale  is  directed  to  be  applied,  the  heir  takes  the  benefit  of  such  partial 
failure  as  personal  estate  ;  but  if  there  be  a  total  failure  of  the  purposes,  the 
devisor's  intention  as  to  a  sale  is  to  be  considered  as  revoked  by  the  events 
which  have  happened,  and  the  heir  takes  the  land  as  real  estate.(^)  Where, 
however,  a  discretion  was  vested  in  trustees  to  convert  realty  into  personalty 
in  favour  of  next  of  kin,  and  the  trustees  did  not  exercise  that  discretion,  the 
("Jourt  exercised  it  for  them  so  far  as  to  declare  who  were  the  parties  that 
were  entitled  to  take,  namely  the  testator's  next  of  kin,  but  that  such  part 
of  the  fund  as  consisted  of  real  estate  should  be  distributed  as  realty,  so  as 
to  descend  to  their  heir-at-law. (A) 

70,  As  to  the  time  of  the  conversion,  to  be  complete,  it  must  take  place  in 
the  lifetime  of  the  o\vner,(l)  but  if  he  contract  to  sell  his  land,  that  will  be  a 

(z)  Kcnncll  v.  Abbott,  4  Vcs.  803. 

(«)  1  Sim.  275  ;  S.  C,  4  Russ.  75.  (h)  R.  C,  3  R.  &  My.  231. 

(/•)  Scudiinorc  v.  Scui  inioro,  Free.  Clian.  543  ;  Flctciicr  v.  Asliburncr,  1  U.  C.  C.  497  ; 
I'l,im!r:'.n  v.  Flanaffan,  cited  lb.  503. 

.'-/)  M  rcford  v.  Ravinfiil),  1  Bcav.  491.  (0  Hewitt  v.  Wriebt,  1  B,  C.  C.  86. 

(  f)  iJidcn  V.  Pcmbrolic,    T.ady,)  3  Vcrn.  ."SS;  S.  C,  ."3  Clian.  Ucp.  '2X1. 

(<r)  Smith  V.  Ciircton,  4  Muid.  44S;  sco  aIi»o  Wriy^ht  v.  Wr-ht,  IG  V'es.  188;  Dixon 
V.  Divvson,  2  Sim.  &  St.  340  ;  Jcssopp  v.  Wat.-nn,  1  My.  &.  K.  (if)5. 

(A)  Cole  v.  Wade,  16  Vcs,27;  recognised  in  Walter  v.  Maunde,  19  Vcs.  424. 


H)  Where  fbc  conversion  is  positively  directed  at  a  particulr.r  lime,  it  is  considered  a» 
having  taken  place  at   the  death  of  the  testator.     Kcading  v.  Blackwcll,  1   Baldw.  173 


CONVERSION     IN     CASES     OF     INFANTS,     ETC.  53 

coinplete  conversion,  although  the  conveyance  has  not  been  perfected  until 
after  his  death,  and  the  purchase  money  will  go  to  the  executor. (jj(l)  So, 
where  a  tenant  has  an  option  to  purchase,  the  rents,  until  the  option  is  made, 
go  to  the  heir,  but  from  that  time  the  conversion  takes  j)lace,  and  the  pur- 
chase money  shall  go  to  the  personal  representative. (A-)  So,  where  the  ten- 
ant elected  to  purchase  after  the  death  of  the  lessor,  held  that  the  election 
had  relation  to  the  time  of  *the  contract,  and  the  property  was  con-  ^  ^„  -, 
verted  from  that  time  into  personalty. (/)  So,  upon  sale  of  estates  L  -^ 
under  a  bankruptcy,  the  property  paying  twenty  shillings  in  the  pound,  and 
the  bankrupt  being  dead,  it  has  been  held,  that  so  much  of  the  real  property 
as  was  converted  in  the  lifetime  of  the  bankrupt  should  be  deemed  personal, 
and  so  much  as  was  converted  after  his  death  should  be  considered  real 
estate  ;(m)  so,  upon  a  mortgage  with  a  power  of  sale,  reserving  the  residue 
to  the  mortgagor,  his  executors  and  administrators,  if  the  sale  takes  place  in 
the  lifetime  of  the  mortgagor,  the  surplus  is  personal  estate,  if  after  his  death, 
it  is  real  estate. (raj 

3.  Election. 

77.  Where  land  is  devised  in  trust  to  be  sold,  the  panies  may  elect  to  take 
it  as  land,(o)  but  they  must  do  some  act  to  determine  their  election,  or  the 
land  will  be  deemed  to  be  converted  ;(o)(2)  so,  where  lands  are  devised  to  be 
sold,  and  the  money  divided  among  several  persons,  none  of  them  can  elect 
to  take  land  instead  of  money,  if  one  desires  a  sale  ;(/^)(3)  so  there  can  be 
no  election  whore  it  would  be  to  the  prejudice  of  third  parties. ((/V4j 


III.  ^on'orr.cn'oH  In  (tnMn  cf  X^nfaut.t;,  Sunatfrs,  auiof  2;)artncr.!5. 

78.  As  a  rule  the  nature  of  either  an  infant's  or  lunatic's  properij^  must 
not  be  changed  so  as  to  convert  them,  neither  by  a  trustee,  nor  by  the  court 

(i)  Baden  v.  Pembroke,  CLady,)  sup.  (k)  Townley  v.  Bidwell,  14  Vts.  591. 

(/)  Lawcs  V.  Boiirictt,  1  Cox,  1(>7.  (in)  Bulk  v.  Scort,  5  Madd.  4;i3. 

(n)  AYright  v.  Rose,  2  Sim.  &  St.  323.  (o)  Kirkman  v.  Miles,  13  Vcs.  383. 

(/;)  Dceth  V.  H;il^,  2  Molloy,  317;  and  see  Walker  v.  Dennc,  2  Ves,  170. 
((j)  Davers  v,  Folkes,  1  Eq.  Cas.  Abr,  396- 

Allison  V.  Wilson,  13  S,  &  R.  332  ;  Simpson  v.  Kclso,  8  W.  247  ;  but  if  directed  on  an 
event,  it  will  not  l>e  so  considered  until  tliat  hapj)en.  Wright  v,  Methodist  Chureh,  1  HolT 
21i) ;  10  Pet.  5t>3  ;  G  )shart  v.  Evans,  5  Wht.  65i ;  when  it  hapjxjas  it  becomes  money. 
WJiarton  v.  Shaw,  13  S.  &  R.  332. 

(1)  But  an  authority  by  private  act  works  no  converjsion.  Tiigliman's  Estate,  5  Wht. 
41.     Gest  V.  Flock,  1  Green.  C!i.  R.  115. 

(2)  A  mortgage  of,  by  the  person  entitled  to  the  money,  is  an  election,  and  it  cannot  bo 
disturbed.  Gest  v.  Flock,  1  "Green  C.  R.  11.5;  or  a  devise  as  a  house.  Burr  v.  Sim,  I 
Wht.  265;  or  a  conveyance  by  feme  discovert,  who  had  the  separate  use  under  the  will; 
Smith  V.  Starr,  3  ^VhU  ti2.  It  is  the  clcetion,  not  the  right  to  make  it,  which  impresses 
the  property  with  its  former  ciiiracter.     Craigc  v.  Leslie,  3  Wiicat.  378-SG. 

(3)  When  made,  it  becomes  a  new  acquisition  for  the  purpose  of  descent.  Burr  v.  Sim, 
1  Wilt  266.     Simpson  v.  Kelso,  8  W.  262. 

(4)  The  Court  will  consider  ti^e  conversion  as  made  at  the  death  of  the  testator,  or 
within  a  year,  so  as  not  to  interleie  with  the  rights  of  third  persons.  Van  Vechtca  v.  id. 
8  Paige,  124. 


54  CRABb's  LAW  OF  RKAL  PROPERTY. 

itself,  which  is  only  a  trustee  ;(r)  but  the  reason  AA-hj^  an  infant's  personal 
^_  .  -,  estate,  turned  into  real,  was  still  considered  personal,  was  on  ^account 
L  -'of  the  different  ages  at  which  (before  the  7  W.  4  &  1  V.  c.  26,  pre- 
venting infants  from  making  any  wills,)  an  infant  might  dispose  of  his  per- 
sonal and  his  real  estate,  and  not  in  favour  to  one  representative  more  than 
another  ;(s)(l)  but  there  were  cases  where  the  court  deviated  from  that  rule, 
where  it  appeared  that  it  would  be  for  the  benefit  of  the  party. (f) 

In  the  case  of  lunatics  the  first  care  is  to  provide  for  the  maintenance  of  the 
lunatic,  but  it  is  a  rule  never  to  change  his  property,  nor  to  alter  the  succes- 
sion of  it, (?<)(2)  and  a  committee  is  not  authorised  to  purchase  real  estate  with 
savingSj  and  so  alter  its  nature,  for  land  so  purchased  will  be  deemed  person- 
alty ;(y)  but  the  Court  have  allowed  part  of  the  personal  estate  to  be  laid  out 
in  improving  the  real  estate,  if  the  next  of  kin,  who  had  an  interest,  did  not 
shew  any  reason  against  it. (a;) 

The  committee  may,  it  seems,  exercise  the  same  power  over  a  lunatic's 
estate,  with  regard  to  cutting  timber,  as  the  lunatic  himself  might  have 
done  ;(i/)  but  there  is  no  equity  for  the  heir,  as  against  the  personal  represen- 
tatives, to  have  the  surplus  money,  arising  from  the  sale  of  timber,  felled  by 
the  order  of  the  Court,  restored  after  the  death  of  the  lunatic  ;(r)  and  the 
case  is  the  same,  where  the  produce  of  the  timber  has  been  applied  in  redemp- 
tion.(a)  As  to  when  the  estate  of  the  lunatic  shall  be  deemed  real  or  per- 
sonal, under  11  G.  4  &  W,  4,  c.  65,  see  Dig.  p.  i.  tit.  Lunatics,  (^Rcncieal, 
Surplus.^ 

It  is  said  in  Philips  v.  Philips, (/>)  that  all  property,  whether  real  or  per- 
^__  -,  sonal,  whatever  may  be  its  nature,  purchased  *with  partnership  cap- 
L         -^  ital  for  the  purposes  of  the  partnership  trade,  will  have,  to  every  in- 
tent, the  quality  of  personal  estate,  and  the  same  was  laid  down  as  the  law 
in   Fereday  v.  Wightwick,(c)   recognising  Townsend   v.  Devaynes.(rf)(3) 

(0  Ex  parte  Phillips,  19  Ves.  123  ;  Ware  v.  Polhill,  11  Vcs.  278. 

(s)  Pierson  v.  Shore,  1  Atk.  480. 

(/)  Winchcl.-ca  (Earl)  v.  Norcliffc,  1  Vcrn.  437  ;  Ashburton  v.  Ashburton,  6  Ves.  6  ;  Webb 
V.  Shaftesbury  (F.ord,)  6  Madd.  100. 

(m)  Ex  |>artc  Aniiandalc  (Lady,)  Ambl.  ^  81. 

(d)  Audlcy  V.  Audley,  2  Vcrn.  1!)2  ;  S.  C,  2  Freem.  114, 

(x)  Sergcson  v.  Sealey,  2  Atk.  413.  (y)  Ex  parte  T.udlow,  2  Atk.  407. 

(z)  Ex  parte  Bromfield,  3  B.  C.  C.  510  ;  S.  C,  1  Vcs.  juii.  4.53 ;  Oxendon  v.  Compton 
(Lord,)  4  B.  C.  C.  231 ;  S.  C,  2  Vcs-.  jun.  69. 

(a)  Exparte  Piiilli|)s,  19  Vcs.  118  ;  and  sec  Ware  v.  Polhill.  sup. 

(6)  1  My.  &  K.  6G3.  (r)  1  R.  &  My.  45. 

(d)  1  Mout.  Law  of  Part.  Append.  97.     Sec  also  Brooju  v.  Broom,  3  My.  &  K.  443. 

(1)  The  Courts  in  this  country  adopt  tliis  rule,  looking  to  the  benefit  of  the  infant,  not 
to  the  person  in  succession,  thoug-Ii  in  most  cases  they  are  the  same,  whether  the  property 
be  realty  or  personalty.  Mills  v.  Denis,  3  J.  C.  R.  370.  Stapclton  v.  VandcrJiert,  3  Dcss. 
21  ;  and  this  jwwer  in  Pennsylvania  is  vested  in  the  Orphans'  Court  by  the  Act  1832,  ^ 
31.iii. 

(2)  The  interest  of  those  in  succession  are  not  regarded,  and  the  timber  will  be  sold  or 
conversion  ordered  as  will  most  benefit  the  lunatic.     In  re  Salisbury,  3  J.  C.  R.  347. 

(3)  The  right  only  exists  in  equity — at  law  the  title  passes  to  the  partners  as  tenants  in 
common,  and  by  tlieir  several  conveyances.  Sig-ourncy  v.  Mann,  7  Conn.  11.  Delaney  v. 
Hutchinson,  2  Rand.  183.  And  there  must  be  superior  equity  (o  induce  the  Court  to  inter- 
fere.     Anderson  v.  WilUins,  1  Brock.  4G3. 

If  purchased  with  partnershi[)  funds  and  for  partnership  purposes,  the  Court  will,  as 
Iwtwccn  creditors  oi'tiio  firm  aiul  separate  creditors,  consider  it  j>ersoual  property,  nnil  iho 
joint  creditors  as  having  a  priority.     Sigourncy  v.  Mann,  sup.     Forde  v.  Hcrron,  4  Munt'. 


R  I  G  H  T  S     O  F     T  II  E     H  E  I  R,     K  T  C.  55 

So,  in  Morris  v.  Kearsley,  real  estate  held  for  partnership  purposes  was  de- 
clared to  be  in  the  nature  of  personal  estate  ;(e)  but  in  earlier  cases  it  had 
been  decided  that  the  user  and  enjoyment  of  freehold  property  for  partner- 
ship purposes,  and  an  agreement  between  the  co-partners  to  hold  the  property 
in  trust  for  the  co-partnership,  would  not  alter  the  descendible  character  of 
the  real  estate,  where  the  agreement  was  not  so  express  as  to  amount  to  a 
conversion  of  the  property  into  personalty. (/)  In  Ripley  v.  Waterworth  the 
real  property  was  held  to  be  converted,  because,  on  the  construction  of  the 
deed,  it  appeared  that  the  parties  had  contracted  that  when  the  partnership 
determined  the  property  should  be  converted  to  all  intents  and  purposes  ;(,§•) 
so,  if  the  property  held  by  partners  is  not  used  for  partnership  purposes  it 
has  been  held  not  to  be  converted. (A)  As  to  shares  in  companies,  see  infra, 
§  83. 


*SECTION  IV.  [  *56  ] 

MISCELLANEOUS  POINTS  OF  DISTINCTION  BETWEEN  REALTY  AND  PERSONALTY. 

I.  erije  Bi2!)t3  aiiTi  mmutksot  tlje  1J?cfc. 
1 .  Bights  of  the  Heir. 
§  80.  As  to  Conditions  and  covenants.  |  §  80.  Taking  advantage  of  Contracts. 

(e)  2  Y.  &.  Col.  139. 

(/)  Tliompson  v.  Dixon,  3  B.  C.  C.  198;  and  that  authority  was  followed  in  Bell  v. 
Phyn,  7  Vcs.  453;  and  see  Smith  v.  Smith,  5  Ves.  189  ;  Balmain  v.  Shore,  9  Ves.  500  ; 
Stuart  V.  Bute  (Marquis,)  11  Vcs.' 665  ;  Crawshay  v.  Maule,  1  Swanst.  5iJl. 

(jt)  7  Ves.  4:?5. 

(A)  Randall  v.  Randall,  7  Sim.  271 ;  Cookson  v.  Cookson,  8  Sim.  539. 

316.  Richardson  v.  Wyatt,  2  Dess.  482;  or,  if  there  be  a  conversion  by  express  agree, 
ment — as,  tliat  it  is  part  of  the  capital,  ut  sup.  Green  v.  Green,  1  Ham.,  Ohio,  5 13.  Coles 
v.  Willet,  15  John.  161.     M'Dermott  v.  Laurence,  7  S.  &  R.  438. 

But  there  must  be  notice  to  affect  third  persons  on  the  face  of  the  deeds.  Hall  v. 
Henrie,  2  ^Vatts,  145.  Forde  v.  Hcrron,  ut  sup.  And  the  mere  fact  of  a  purchase  with 
partnership  funds,  will  not  affect  the  right  as  acquired  by  the  conveyance,  for  the  jjartners 
have  a  riirlit  to  apply  the  property  in  that  wajr.  Id.  Goodwin  v.  Ricliardson,  11  3Iass. 
469.  Nor  if  merely  for  the  purpose  of  carrying  on  the  trade.  Edgar  v.  Doimelly,  2 
Munf  387.  The  fact  that  tlic  conveyance  was  not  to  tlie  parties  as  partners,  was  relied  on 
in  M'Dcrmott  v.  Laurence  and  Forde  v.  Herron,  as  indicating  an  intention  that  tlie  pro- 
perty was  not  to  be  converted. 

That  the  firm  may  follow  moneys  laid  out  in  land  by  one  partner,  for  the  doctrine  of 
resulting  use,  is  well  settled.  Edgar  v.  Donnelly  ut  sup.  Kistcr  v.  Kister,  2  W.  323,  in 
the  syllabus  of  v/liieh  "not"  is  printed  for  "or."  For  they  arc  in  the  same  situation  as 
others,  and  that  their  creditors  may  do  the  same,  not  conflicting  with  the  rules  which  pro- 
tect purchasers  without  notice,  would  seem  to  follow.  Hale  v.  Henrie,  being  a  case  of  a  pur- 
chase. Leiscnring  v.  Blake,  5  W.  307.  As  the  English  doctrine  is  unnecessary  here,  as 
all  lands  are  assets,  and  as  entire  justice  between  all  parties  may  be  done  by  this  rule,  so 
far  as  it  does  not  conflict  with  other  rights  equally  sacred,  it  will  perhaps  be  found  to  be 
the  best  calculated  to  reconcile  the  c^ses,  to  hold  the  title  to  the  land  in  all  cases  passes 
in  default  of  express  agreement  as  land,  subject  to  tlie  right  of  partners  or  their  creditors 
to  follow  the  purchase  money  into  the  land  on  the  same  terms  and  restrictions  as  in  cases 
of  trusts,  so  far  as  it  may  be  necessary  to  do  justice  between  the  partners. 


« 


56  crabb's    law    of    real    property. 

2.  Liabilities  of  the  Heir. 

81.  Conditions  and  Covenants,  j     81.  Contracts  or  Agreements, 

II.  flatters  affcdfna  tlje  ?i}ac  an^)  <DtI)cr«. 

82.  Title  of  tlie  Heir,  when  not  to  be  dc-        82.  Contribution,  wlien  Heir  liable  to, 

featcd. 

III.  ES^jjat  Ijcemeii  Entcicsts  in  2.nnT!  oc  #tl)crlDise. 


83,  What  Rateable. 
Pipes  laid  down. 
Sliares  in  Waterworks. 


83.  Contracts  giving-  an  Interest  in  Lan  d. 
Occupation  of"  Land. 


IV.  Statutes  relating  to  iDropcit". 


84.  Land  Tax, 

Deatlis  of  Cestui  que  Vies. 
Q^jahfication  by  Estate, 


84.  Settlement  by  Estate. 
Statutes  of  Limitations. 
Criminal  Offences  affecting  the  Realty 


79.  The  principal  matters  remaining  to  be  considered  under  this  head 
relating  to  the  distinction  between  realty  and  personalty  are,  1.  The  rights 
and  liabilities  of  the  heir  in  respect  of  the  acts  and  contracts  of  the  ancestor  ; 
2.  Matters  affecting  the  heir,  executor,  and  other  persons  ;  3.  What  deemed 
interests  in  land  or  otherwise  ;  4.  Statutes  relating  to  real  or  personal  pro- 
perty. ♦ 


[*57]    *r.  ^bx  jKifihts  anti  S-taiJllitfrs  of  ti\r  Ijrfr. 

1.  Itights  of  the  Heir. 

80.  Conditions  and  covenants  real,  or  sucli  as  are  annexed  to  estates,  shall 
descend  to  the  heir,  and  he,  as  a  rule,  alone  shall  take  advantage  of  them  ;[k) 
for  conditions  can  only  be  reserved  to  the  feoffor,  donor  or  lessor,  and  their 
heirs,  and  not  to  any  stranger,(/]  and  the  condition  descends  to  the  heir  by 
implication  of  law  without  express  words  ;(m)  so,  if  a  man  seised  in  right  of 
his  wife,  makes  a  feoffment  in  fee  upon  condition,  and  dies,  after  the  condi- 
tion is  broken,  the  heir  of  the  husband  shall  enter,  for  the  title  of  entry  by 
force  of  the  condition,  which  Avas  created  upon  the  feoffment,  and  reserved 
to  the  feoffor  and  his  heirs,  descended. (n) 

So,  where  covenants  run  with  the  land  as  a  covenant  to  repair,  although 
the  lessee  covenants  with  the  lessor,  his  executors,  administrators,  and  as- 
signs, yet  his  heir  may  have  an  action  on  this  covenant  ;(o)(l)  but  where  the 

(A-)  Underwood  v.  Swain,  1  Clian.Rcp.  161  ;  Marks  v.  Marks,  Pre.  Clian.  486  ;  Wlialey 
V.  Cox,  2  Eq.  C,i.  Abr.  5 19  ;  Wigg  v.  Wigg,  1  Alk.  382  ;  Hodgson  v.  Rawson,  1  Vez.  47. 
(/)  Litt.  s.  447  ;  1  Inst.  214.  (w)  1  Roll.  Abr.  470. 

In)  Whittino-ham's  case,  8  Co.  43  ;  1  Inst.  202. 

(0)  Loughcr''v.  Williams,  2  Lev.  92  ;  S.  C,  2  Danv.  235. 

(1)  Real  covenants  run  with  the  land,  deS^cend  to  heirs  and  vest  in  assignees,  4  Kent 


LIABILITIESOFTIIEIIEIR.  57 

breach  takes  place  in  the  lifL'timc  of  the  covenantee,  the  action  shall  be 
brought  by  tlie  executor ;(/;)(!)  so,  where  the  covenant  is  in  gross  the  rule 
does  not  apply,  as  where  the  covenant  is  with  J.  S.  to  make  a  conveyance  to 
one  and  his  heirs,  his  heir  shall  not  have  an  action,  sed  seats  if  the  covenant 
is  in  another  conveyance  and  goes  with  the  estate. ((7)  So,  a  covenant  with 
a  man  and  his  heirs  to  convey  land  is  good,  because  the  covenant  is  real,  but 
an  obligation  to  a  man  and  his  heirs  is  bad,  because  the  covenant  is  per- 
sonal.((/) 

The  heir  may  also  take  advantage  of  the  contracts  of  the  *ancestor,  ^_„  -. 
therefore,  where  A.'s  father  contracted  with  a  carpenter  to  pay  him  L  -^ 
£1,000  to  build  a  house  on  his  estate  and  A.  dies  before  the  contract  is  put 
into  execution,  the  heir  may  compel  the  building  of  the  house,  and  the  exe- 
cutor to  pay  the  money. (r)  So,  where  a  tenant  had  an  option  to  make  a  pur- 
chase of  the  land  within  a  given  time,  and  the  option  was  not  made  until  after 
his  death,  nevertheless  his  heir  was  entitled  to  have  the  land  and  the  execu- 
tor bound  to  pay  the  money  ;(s)(2)  but  the  contract  must  be  such  as  the 
ancestor  was  bound  to  perform,  therefore,  where  a  contract  for  the  purchase 
of  an  estate  was  not  completed  in  the  ancestor's  lifetime,  from  the  terms  of 
it  not  being  ascertained,  held,  that  the  heir  was  not  entitled  to  have  the  per- 
sonal estate  applied  in  payment  of  the  purchase-money ;(/)  and  as  to  what 
was  deemed  part  performance  of  the  contract  see  Wills  v.  Stradling.(w)  So, 
.where  A.  covenants  for  himself  and  his  heirs  that  he  \vill  purchase  lands  and 
settle  the  same  on  himself  for  life,  remainder  to  his  wife  for  life,  and  remain- 
der to  his  first  and  other  sons  in  tail,  remainder  to  himself  in  fee,  equity  will 
compel  the  executor  to  lay  out  the  money,  although  the  heir  is  both  debtor 
and  creditor. (a:?)  See  further  as  to  a  conversion  of  money  into  land,  &c.,  ante, 
§  60,  et  scq. 

2.  LialUities  of  the  Heir. 

81.  So,  the  heir  is  in  like  manner  bound  by  the  act  of  the  ancestor,  and 

{p)  Lucv  V.  Levin?ton,  2  Lev.  26;  S.  C,  1  Vent.  175;  2  Kcb.  831  ;  2  D.n.  8G  ;  1 
And.  55.     "  ■"  (7)  Pahn.  558. 

(r)  Leclimcrc  v.  Carlisle  (Earl),  3  P.  Wms.  222. 

(n)  Douglas  V.  Wliitrong-,  citecl  IG  Ves.  253. 

(0  Sava-rc  V.  Carroll,  1  Ball  &.  Bca.  265.  282.  Sec  also  Buckmaster  v.  Ilarrop,  13  Ves. 
456.  (")  3  Ves.  378. 

(i)  Lechmere  v.  Carlisle  (Earl),  3  P.  Wms.  223. 

Com.  471,  and  the  cases  cited  in  note  (//%  or  the  assignee  by  a  sheriff's  sale.  Whilcliill 
V.  Gotwalt,  post. 

On  p.  492,  ho  says,  the  general  covenant  that  a  man  will  warrant  and  defend  the  title, 
is  a  personal  covenant.  Tiie  contrary  has  been  held  to  be  the  law  in  Whitchill  v.  (iot- 
waU,  3  Penna.  Rep.  313—31,  wiiere  the  covenant  was,  that  he  would  warrant  against  all 
persons  claiming  under  him,  &.C.,  the  usual  covenant  in  that  state,  and  it  was  then  said, 
it"  tlie  eviction  was  after  the  eonveyanoe,  he  alone  could  sue. 

(1)  Chancellor  Kent  says,  4  Coin.  471-2,  this  rule  is  sustaijied  by  the  current  of  E;ig- 
lish  and  American  cases,  but  that  it  has  been  held  in  Kingdon  v.  Nottle,  1  M.uil.  &  Sel. 
355,  4  ib.  53,  that  a  covenant  of  seisin  being  broken  by  the  want  of  seisin  at  llie,  time  of 
conveyance,  docs  not  pass  to  the  assignee.  He  considers  tliis  incorrect,  (or  it  is  a  coiitiimtd 
covenant,  though  the  S.  P.  was  decided  in  Backus  v.  M'Coy,  3  Ohio  Kep.  211.  Contra, 
Mitchell  V.  Warner,  5  Conn.  Rep.  497. 

(2j  It  has  been  ruled  in  Penn.sylvania,  that  the  administrator,  by  virtue  of  his  duty  to 
collect  assets  for  payment  of  debts,  succeeds  to  tlie  right  of  the  ancestor  to  rescind  a  con- 


58  crabb's    law    of    real    property. 

therefore  will  be  bound  bj^  all  such  conditions  and  covenants  as  run  with  the 
land,  whether  such  were  annexed  to  the  estate  by  the  original  feoffor,  or 
grantor,  or  by  his  immediate  ancestor ;(.;:)  and  although  an  infant,  he  is 
equally  bound,  therefore,  if  by  tenure  or  prescription  certain  lands  are  bound 
r  *i=iq  ~i  '•^  ^^^  repair  of  bridges  and  *highways,  and  the  same  come  to  an 
L  -^  infant  by  descent  or  purchase,  he  shall  be  obliged  to  repair  in  the 
same  manner  as  if  he  were  of  full  age  ;(a)  so,  where  a  man  covenants  to 
convey  lands,  his  heirs  shall  be  bound,  although  not  named  ;(6)  and  so,  even 
where  it  was  only  an  agreement  and  by  parol,  yet  being  in  consideration  of 
marriage,  the  court  decreed  an  execution  ;(c)  and  so,  an  heir  is  bound  to  per- 
form his  father's  covenant  where  he  is  benefitted  by  the  contract,  though  he 
claims  nothing  but  what  was  settled  on  him  in  strict  settlement. (rf)  So  if  A. 
contracts  to  sell  lands,  and  receives  great  part  of  the  purchase-money,  but 
dies  before  the  conveyance,  the  heir  shall  convey  the  lands,  and  the  money 
shall  go  to  the  executor  ;(e)  so,  if  lands  are  settled  on  trustees  for  raising 
daughters'  portions,  the  heir  shall  join  in  the  sale,  although  the  legal  estate 
is  not  in  him  ;(/]  but  the  issue  of  a  tenant  in  tail  is  not  bound  to  perform  an 
unexecuted  agreement  for  the  sale  of  an  estate,  for  the  heir  comes  under  the 
statute  singly,  and  not  as  deriving  from  the  ancestor,  who  contracted  •,[g\ 
but  as  to  the  power  of  a  tenant  in  tail  to  dispose  of  the  estate,  see  3  &  4  W.  4, 
c.  74,  Prec.  in  Conv.  tit.  Fines  and  Recoveries,  3rd  Ed. ;  and  as  to  the  con- 
version of  land  into  money,  see  ante,  §  68  et  seq. :  and  as  to  where  a  court 
of  equity  may  compel  an  infant  heir  to  convey  lands  for  the  payment  of  debts 
or  under  the  contract  of  the  ancestor,  see  11  Geo.  4,  &  1  W.  4,  cc.  47.  60, 
Dig.  P.  ii.  tit.  Courts  (Equity). 


[  *60  ]      *ii.  i-iiiattcrs  aCfcctina  the  iH^cfr  antJ  ©lUrrjs. 

83.  The  title  of  an  heir  is  not  to  be  defeated  but  by  some  other  title  cer- 
tain and  unexceptionable;  and  therefore,  where  there  is  proof  of  the  exist- 
ence of  a  will,  the  contents  of  which  do  not  appear,  no  conjecture  shall  be 
admitted  to  the  prejudice  of  the  heir  ;(//.)  so,  where  there  are  two  wills  void 
for  uncertainty,  the  heir  will  be  let  in  ;(*)  so,  where  there  is  not  a  clear  inten- 
tion to  pass  the  real  estate,  the  court  will  intend  an  intestacy  in  favour  of  the 
heir  l{J){l)  and  an  heir  does  not  want  a  clear  intention  to  take  by  will,  though 

(z)  Whittin^liam's  case,  8  Co.  44;  1  Inst.  233;   Hard.  11  ;  Roll   Abr.  421. 

i")  2  Inst.  703.  (b)  Gell  v.  Vcnmidon,  2  Frcem.  199. 

(c)  Sir  John  Otway's  case,  cited  lb.  (rf)  Clietwynd  v.  Fleetwood,  4  B.  P.  C.  435. 

(c)   B  ulen  v.  Pembroke  (Lady),  2  Vcrn.  52.  215  ;  S.  C,  3  Chan.  Rep.  217. 

(/)  Roll  V.  Roll,  2  Vern.  99. 

(s)  Powcl  V.  Powel,  Prec.  Chan.  278  ;  Weal  v.  Lower,  cited,  2  Vern.  306. 

(//)  Cowp.  92.  (i)  Phipps  V.  Anglcsea  (Earl),  5  B.  P.  C.  45. 

( j)  Timewell  v.  Perkins,  2  Atk.  102. 


tract  ^or  t.lic  purchase  of  land,  and  may  recover  back  the  purchase-money,  and  that  his 
election  will  bind  the  heir.     Pennock  v.  Freeman,  1  Watts,  401. 

(1)  The  same  rule  prevails  in  this  country,  as  is  shown  from  the  cases  deciding-  that  nn 
inheritance  must  be  given  expressly  or  by  implication,  which  does  not  arise  from  a  mere 
gift  oPtlie  land,  to  pass  more  than  an  estate  for  life.  There  are  instances  in  which  tl.is 
latter  rule  has  been  broken  through,  but  in  New  York,  ?vlaryland  and   Pcniisylvauia,  a 


J 


INTERESTINLAND,    ETC.  59 

it  is  otherwise  with  regard  to  a  deed  ;(/t)  yet  a  voluntary  conveyance  shall 
not  be  helped  in  equity  against  an  heir  ;(/)  but  where  the  devise  is  effective, 
it  shall  lie  upon  the  heir  to  prove  that  it  has  been  effectively  defeated  ;(m) 
and  where  one  devised  his  lands  to  J.  S.,  paying  £1,000  to  his  heir,  and  on 
J.  S.  making  default,  the  heir  entered  and  recovered,  yet  the  court  relieved 
the  devisee  on  payment  of  principal,  interest  and  costs,(?i)  when  the  court 
relieved  the  devisee  against  the  entry  of  the  heir,  on  compensation  being 
given  for  the  breach  of  condition  ;  so,  if  an  estate  is  limited  to  trustees  for 
payment  of  debts  and  legacies,  and  the  trustees  raise  the  whole  money,  but 
do  not  apply  it  according  to  the  trust,  the  heir  shall  have  the  lands  dis- 
charged, and  the  legatees  must  seek  their  remedy  against  the  trustees. (o) 
See  further  as  to  the  liability  of  the  heir  to  the  debts  of  the  ancestor,  ante,  § 
31  et  seq. 

If  the  ancestor  binds  himself  in  a  statute,  recognizance,  &c.,  the  heir  is 
liable  not  only  as  terre-tenant,  but  also  as  heir,  otherwise  he  could  not  have  his 
age  but  as  to  parol  ^demurrer  see  11  Geo.  4  and  1  W.  4,  c.  47,  Dig.  p  *pi  -i 
P.  iii.  tit.  Guardian  and  Infant,  (Infant),  and  cannot  oblige  a  pur-  L 
chaser,  whether  for  valuable  consideration  or  without,  to  contribute  ;{p)[l) 
but  one  heir  may  oblige  another  to  contribute  or  one  coparcener  may  oblige 
another  to  contribute  ;(7))(3)  so,  an  heir  shall  not  sustain  the  whole  burthen 
of  an  incumbrance,  where  he  claims  under  the  same  settlement  with  a  joint- 
ress, but  she  shall  contribute. ((y) 


III.  mplxnt  t/ccmrtr  ^^utcrrst  in  HantJ,  ov  ctUcriuisc 

83.  The  questions  as  to  what  are  deemed  interests  in  land  or  otherwise 
have  arisen  in  a  variety  of  cases  relating  to  rates,  \%ter-companies,  contracts 
within  the  Statute  of  Frauds,  &c. ;  thus  tolls  per  se  have  been  held  not  rate- 
able as  real  property,(?')  unless  where  connected  with  sorne  tangible  real 
property,  as  sluices,  engines,  or  the  like.(.s)  See  further  Dig.  P.  iii.  tit.  Poor 
Rate.  So  pipes  laid  in  the  ground  for  the  conveyance  of  gas,  have  been 
held  to  come  within  the  denomination  of  real  property ;(/)  and  on  the  same 

(it)  Lloyd  V.  Spillett,  2  Atk.  151.  (/)  Vane  v.  Fletcher,  1  P.  Wins.  354. 

im)  Harwood  v.  Goodritrht,  Cowp.  87 ;  S.  C,  7  B.  P.  C.  344. 

(n)  B-vrnardiston  v.  Faiie,  2  Vcrn.  366.     And  see  Grimstoiie  v.  Bruce  (Lord),  2  Vern. 

595;  S.  C,  Salk.  156.  (")  Anon.,  1  Salk.  153. 

(  p)  Herbert's  case,  3  Co.  12.  (<?)  Carpenter  v.  Carpenter,  1  Vcrn.  440. 

(()  R.  V.  Eyre,  12  East,  416.  (s)  R.  v.  Cardinjrton,  Cowp.  582. 

(0  R.  V.  Brighton  Gas  Company,  5  B.  &.  C.  466  ;  S.  C.  8  D.  &  R.  308. 


statute  lias  been  requisite  to  give  effect  to  wliat  to  common  understanding-  is  always  the 
intent  of  the  testitor.  'Die  cases  on  the  subject  will  be  Ibund  collected  in  4  Kent  Com. 
537,  c.  68,  §  V. 

(1)  Tl.e  heir  suceeediii;^  to  the  rights  and  obligations  of  his  ancestor,  could  not  compel 
contril>Lition  from  tiiosc  against  whom  such  ancestors  have  no  equity;  that  a  purelias-er 
whose  land  was  subjected  to  a  charge  for  which  his  vendor  was  bound  at  tJic  lime  of  the 
sale,  can  compel  satisfaction  from  him,  has  been  shov/n  ante,  37,  n.  Cowdcn's  Estate,  1 
Barr,  267. 

(2)  Tlie  doctrine  governing  the  case  of  coparceners,  will  generally  apply  in  this  coun- 
try  where  i;ll  the  children  are  heirs,  whether  males  or  females,  Weiser  v.  Weiser,  5 
Watts,  219. 


60         CR abb's  law  of  real  property. 

principle,  pipes  for  the  conveyance  of  water  have  been  held  to  constitute  an 
interest  in  larid,(i<)  and  the  reservoir  with  the  water  would  all  descend  to  the 
heir,(i")  and  shares  in  water-companies  have  been  deemed  real  estates,(a'j(l) 
unless  as  is  usuall}'  the  case,  provision  is  made  in  the  Act  of  Parliament 
-1  *^°^  making  such  shares  personalty  (^)  and  in  Blight  v.  Brent,  2 
L  '^'''  J  Y.  &  Coll.  2G8,  recog-nising-  Weekly  v.  Weekly,  cited  2  Y.  &  Coll. 
281,  and  distinguishing  it  from  the  other  cases,  it  v/as  held,  that  the  shares 
in  the  Chelsea  WaterAvorks  Company  were  personalty,  although  there  was 
no  provision  in  the  Act  making  them  so,  on  the  ground  that  in  the  other 
cases  before  mentioned,  the  corporation  had  no  power  to  convert  the  realiy 
into  personally,  but  in  this  case  they  had  the  fullest  power  of  managing  the 
property  entrusted  to  them  in  whatever  way  they  thought  best. 

Under  the  Statute  of  Frauds,  contracts  for  the  sale  of  growing  grass  have 
been  held  to  be  contracts  for  the  sale  of  an  interest  in  land  ;(^)(2)  so,  a 
contract  for  the  sale  of  growing  \w\es  ;(«)  and  so,  atone  time  a  crop  of  turnips, 
potatoes,  or  corn,  were  held  to  be  interests  in  the  land  while  growing,  but 
not  when  they  had  ceased  to  grow.(6)(3)  See  further,  Dig.  P.  ii.  tit.  Frauds 
(Statute.) 

In  regard  to  the  raleabilit_v  of  land,  it  is  necessary  to  distinguish  between 
an  occupation  of  the  land  of  another  for  a  partial  or  temporary  purpose, 
which  is  a  mere  privilege  or  easement,  as  a  license  to  take  stone  from 
a  quarry,  or  make  a  canal  and  the  like,  and  the  permanent  interest  in  the 
land  which  the  owner  has,  the  former  of  which  is  not  rateable,  and  the  latter 
is,  in  respect  of  the  value  of  the  land. (c)(4) 

(u)  R.  V.  Bath  (Corporation,)  14  East,  609. 

(r)  lb. ;  recognised  in  R.  v.  Rochdale  Waterworks  Company,  1  M.  «-^  S.  63  1 ;  R.  v. 
Chelsea  Waterworks  Company,  5  B.  tfc  Ad.  loG;  S.  C, 2  Xev.  &.  Man.  765. 

(x)  Dry  butter  v.  Bartholomew,  2  P.  Wms.  127  ;  Townscnd  v.  Ash,  336  ;  Stafford  (Lord 
V.  Buckley,  2  Ve?.  182.     And   see   also  Swainc  v.   Falconer,  S!iow.  P.  C  207  ;  Sandys 
(Lord)  V.  Sibthorpc,  2  Dick.  545. 

(j/)  Drybuttcr  v.  Bartholomew,  sup.,  Ex  parte  The  Vauxhall  Bridge  Company,  1  Gl.  «fc 
J.  101  ;  Tlie  Lancaster  Canal  Company,  Mont.  &  Bl.  94  ;  S.  C,  1  D.  &.  C.  420. 

(s)  Crosby  V.  Wadsworth,  6  East,  602;  recognised  in  Evans  v.  Roberts  5  B.  &,  C.  832. 

(«)  Teal  V.  Aughty,  2  B.  &.  B.  99.  (fc)  Emmcrson  v.  Hcelis,  2  Taunt.  38. 

(c)  R.  V.  Trent^aud  3Iersey  Navigation  Company,  4  B.  &.  C.  57  ;  S.  C.  4  D.  &  Ry.  47. 


(1)  Shares  in  corporations,  even  thougli  created  for  the  mere  purpose  of  holding  real 
estate  (such  as  canals,  rail  roads  ice.,)  are  generally  considered  personally.  Trevor  v. 
Perkins,  5  Wht.  255  :  wh(  re  it  was  said  a  provision  making  the  shares,  in  a  particular 
canal,  realty,  was  anomalous.  But  in  \Vel!es  v.Cowles,  2  Conn.  567,  shares  in  a  turnpiko 
company  were  considered  realty.     And  sec  4  Dane  Abr.  670,  e.  130,  x.  art.  4,  §  32. 

(2)  So  the  privilege  of  cutting ',vood  in  a  devise.  Wright  v.  Barrett,  13  Pick.  41.  And 
it  was  thouglit  trespass  quare  cluusinn  j'reoit  would  lie  lor  an  injury  to  a  right  of  the 
herbage,  Rehoboth  v.  Hunt,  1  Id.  229.  So,  in  a  sale  of  growing  timber.  Putney  v. 
Day,  6  N.  H.  4306,  and  of  anything,  part  of  the  inheritance,  requiring  force  to  separate 
it  therefrom,  as  stones,  gravel, "ic.  Bostwick  v.  Leach,  3  Day,  484.  The  san.c  v.as  held 
of  sea  weed  thrown  on  the  sliore.     Emans  v.  TurnbuU,  2  Johns.  R.  322. 

(3)  Penhallow  v.  Dwight,  7  Mass.  34. 

(4)  A  riu^ht  to  dig  or^'  on  a  tract  of  land,  conveyed  to  A.  and  his  heirs,  for  a  valuable 
consideration,  not  appurtenant  to  land,  is  an  incorporeal  hereditament,  not  a  license. 
Grubb  V.  Guilford,  6  Watts,  221 — 46.  The  distinction  is  between  an  eciscmcnt,  wliich  is 
a  permanent  interest  in  another's  laud,  and  a  license,  which  is  to  do  an  act  or  scries  of 
acts  without  any  interest  in  tlie  land.  Per  Kent,  in  3  Com.  4.52.  So  a  bridge  erectt  d 
over  a  puhHc  higliway,  by  the  license  of  tlie  legislature,  is  real  estate,  the  k'^nd  on  wliich 
the  abutments  rested  belonging  to  the  owners  of  the  bridge.  Hurst  v.  Me aaon,  4  \\ . 
346. 


STATUTES     RELATING     TO     PROPERTY.  61 

As  to  the  tenures  by  which  lands  are  held,  the  estates  which  may  be  had  in 
ihem,  or  the  title  which  there  m;iy  be  to  them,  or  the  injuries  affecting  them, 
real  property  is  so  clearJy  distinguished  from  personalty,  as  to  render  any 
close  comparison  between  ihem  unnecessary. 


*iv.  ^tntutcs  Brlatmg  to  Jyropcrtw.  [*63] 

84.  By  the  first  general  Land  Tax  Act,  38  G.  3,  c.  5,  and  continued  Acts, 
a  tax  is  imposed  upon  every  species  of  real  property,  and  on  some  kinds  of 
personally.  See  Dig.  P.  i.  tit.  Land  Tax.  This  lax,  as  regards  personalty, 
is  continued  by  the  3  &  4  W.  4,  c.  98 ;  but  the  annual  tax  on  offices  and 
other  personal  estate  is  repealed  by  the  3  &  4  W.  4,  c.  12. 

By  the  6  A.  c.  18,  provision  is  made  against  the  fraudulent  concealment 
of  the  deaths  of  cestui  que  vies.     See  Dig.  P.  i,  tit.  Estates  (Life.) 

When  an  estate  is  made  a  qualification  for  office  there  is  a  considerable 
difference  observed  betv/een  realty  and  personalty  as  to  the  amount,  as  in 
the  case  of  commissioners  of  land-tax,  trustees  of  turnpike  roads,  commis- 
sioners of  sewers,  justices  of  the  peace,  members  of  Parliament,  and  for- 
merly there  was  also  a  game  qualification.  See  the  respective  titles,  Dig.  P. 
i.,  ii.,  iii. 

By  the  9  G.  1,  c.  7,  the  purchase  of  land  to  the  amount  of  30/.  gives  a 
right  to  a  settlement  in  a  parish,  as  by  other  Acts  the  renting  a  tenement  or 
land  to  the  value  of  10/.  gives  the  same  rifrht.     See  Dig.  P.  iii.  tit.  Poor. 

By  the  early  Mortmain  Acts,  corporations  were  prevented  from  disposing 
of  their  lands,  but  by  subsequent  Acts  license  is  given  to  them  to  make  such 
disposition  for  particular  purposes,  as  for  redeeming  the  land-tax,  building 
churches,  or  providing  church-yards,  &c.,  making  inclosures,  or  exchanges 
and  the  like,  but  the  9  G.  2,  c.  36,  has  imposed  restrictions  on  all  persons, 
generally,  making  gifts  of  either  lands  or  personal  estate  to  charitable  uses. 
See  further.  Dig.  P.  i,,  ii.  tit.  Charities,  Church,  Common  ;  P.  iii.  .Mortmain, 
where  also  similar  provisions  will  be  found  affecting  femes  covert,  infants, 
lunatics,  and  persons  having  particular  estates. 

*The  periods  within  which  real  and  personal  property  may  be  ^„  .  -, 
recovered  by  action  or  otherwise,  is  now  particularly  defined  by  the  L  -• 
21  J.  1,  c.  io,  3  &  4  W.  4,  cc.  27.  42,  and  other  Acts,  see  Dig.  P.  iii.  tit. 
Limitations.  So,  as  to  the  stealino-  goods  and  chattels,  and  writings  which  may 
serve  as  evidence  of  title  to  real  estate,  see  the  Larceny  Acts,  Dig.  P.  i.  tit. 
Larceny.  And  as  to  the  abduction  of  heiresses,  or  Avomen  generally,  for 
their  property,  see  Dig.  P.  i,  tit.  Abduction. 

As  to  advowsons,  copyholds,  leases,  &c.,  see  the  respective  titles,  post, 
and  Dig.  P.  i.,  ii.,  iii.,  tit.  Advowson,  Copyholds,  Distress,  Leases,  Land- 
lord and  Tenant. 


62 


crabb's  law  of  real  property. 


[*65] 


*C  H  A  P  T  E  R    II. 
CORPOREAL  HEREDITAMENTS. 


Sect.  I. 
§  86.  Lamd. 

Sect.  II. 
§  88.  Manors. 

Sect.  III. 
§  89.  Mouses. 

Sect.  IV. 
§  90.  Churches. 

Sect.  V. 
§  93.  Suit  at  mill. 


Sect.  VI. 

§  94.    CoMMOA'S  AND   WASTE  LANDS. 

Sect.  VII. 
§  96.  Woods  and  trees. 

Sect.  VIIU 
§  97.  Forests  and  chases,  &c. 

Sect.  IX. 
§  93.  Mines  and  minerals. 

Sect.  X. 
§  102.  Ways. 

Sect.  Xf. 
§  101.  Water. 


§  85.  Corporeal  hereditaments  are  as  before  observed  (see  ante,  s.  2; 
matters  of  sense,  and  include  all  the  different  parts  of  land,  in  which  accord- 
inrr  to  their  several  uses  and  natures  persons  have  acquired  distinct  rights 
and  interests  that  are  recognised  in  law,  and  form  distinct  branches  of  real 
property.  These  may  be  considered  under  the  following  heads  : — 1.  Land  ; 
2.  Manors;  3.  Houses;  4.  Churches;  5.  Mills;  6.  Commons  and  Waste 
T^ands;  7.  Woods  and  Trees;  8.  Forests,  Chases,  (fee;  9.  Mines;  10. 
Ways  ;   11.  W^ater. 

What  relates  to  tenures,  estates,  titles  and  injuries  affecting  corporeal 
hereditaments  will  be  found  in  the  subsequent  books. 


[*66]  *SECT10N  I. 

LAND. 

(j  86.  Sioiiificatioii  of  tlic  word  "  Land." 

I.  JJLMjcit  passes  l)»  tl)c  name  cf  Han't;. 

§  86.  In  Grants.  |  86.  In  Devises. 

II.  iiv  U)i)at  names  tljc  Soil  toill  ^jasi. 


^  87.  Mcssungc  or  House. 
Cottapc. 
Wood,  &c. 
Farm. 
Minos,  &.C. 
Fold-course. 


87.  Park,  &c. 
Water. 
Fisliery. 

Profits  of  the  Land. 
Herbage,  &.c. 


AV  ]I  A  T     PASSES     BY     THE     NAME     OF     LAND.  63 

§  86.  Land,  even  in  the  limited  sense  in  which  it  is  commonly  used, 
applies  to  all  kinds  of  grounds,  as  meadows,  pastures,  woods,  moors,  marshes, 
furze,  heath,  &c.  ;  but  not  to  rents  and  advowsons  and  such  like  things  ;(«) 
and  in  this  sense  it  is  taken  in  a  grant  of  land,  but  in  writs  and  pleadings  it 
is  taken  in  a  restricted  sense  for  arable  land  only.(^)  Of  land,  therefore,  it 
will  be  necessary  to  consider : — 1.  What  passes  under  the  name  of  land  ;  2. 
By  what  names  the  soil  will  pass. 


I.  S^S'Uat  passes  tJi)  tUc  name  of  Santf. 

By  the  grant  of  all  lands,  do  pass  arable  lands,  meadows,  woods,  moors, 
waters,  marshes,  furzes,  &c.(c)  It  includes  also  castles,  houses  and  other 
buildings  erected  thereon,  ^therefore,  if  a  man  grant  all  his  lands  in  ^  -. 
D.,  his  houses  there  pass. (J)  So,  if  a  man  let  his  land,  open  mines  L  -■ 
will  pass  ;(e)  but  not  such  as  are  not  open,(e)  unless  he  let  the  land  with  all 
the  mines  in  it,  and  there  are  no  open  mines. (e)  So,  if  a  man  grant  his  land, 
all  the  profits  within  the  bowels  of  the  earth  will  pass  ;(/)  as  mines  of  tin, 
lead,  iron,  coal,  &c.  ;(/)  so,  water  upon  the  land,  and  fish,  and  a  piscary. (/) 
So,  if  a  man  demise  the  herbage  of  his  woods,  although  the  soil  does  not  pass 
thereby,  yet  if  he  afterwards  grant  all  his  land  in  the  tenure  or  occupation  of 
the  lessee,  the  wood  passes. (5-)  So,  by  grant  of  any  land  in  possession,  the 
reversion  thereof  will  pass  ;(1)  sed  secus  as  to  the  grant  of  land  in  reversion, 
for  the  land  in  possession  will  not  pass. (A)  And  in  such  grants  respect  must 
be  had  to  the  estate  of  the  grantor,  therefore  if  a  man  seised  in  fee  of  some 
lands,  have  other  lands  for  life  or  years  only  in  a  parish,  and  grants  all  his 
lands,  tenements  and  hereditaments  in  this  parish,  and  makes  livery  of  seisin 
of  the  lands,  whereof  he  is  seised  in  fee  in  the  name  of  all  the  rest,  no  more 
will  pass  than  the  lands  whereof  he  is  seised  in  fee,  for  otherwise  it  would 
be  a  forfeiture  for  those  lands ;(«)  but  wherever  no  forfeiture  would  be  occa- 
sioned, leasehold  lands  held  with,  and  reputed  part  of  a  freehold  estate,  would 
pass  by  the  conveyance  of  the  freehold  by  force  of  the  general  words,  "  all 
meadows,  lands,  &c.,  to  the  said  freehold  belonging  or  appertaining."(/c) 

In  a  devise,  greater  latitude  is  given  to  the  construction  of  the  words, 
therefore,  where  one  devises  all  his  freehold  houses  in  A.,  and  has  none  but 
leasehold  houses  there,  the  leaseholds  shall  pass  ;  sed  secus  in  a  grant  ;(/) 
and  in  a  devise  such  a  description  will  be  deemed  sufficient,  by  which 

-  («)  1  Inst.  4 ;  Shep.  Touchst.  91.  (h)  Silly  v.  Silly,  1  Vent.  260. 

(c)  Perk.  gcct.  114.  {d)  2  Roll.  Abr.  57. 

(e)  Astiy  V.  Ballard,  2  Lev.  185.  (  /")  14  H.  8,  1  ;  1  Inst.  4. 

(2-)  1  Inst.  4,  b.  ("/')  Liford's  case,  11  Co.  47. 

(i)  Shop.  Touchst.  92.  {k)   Doe  v.  Williams,  1  H.  Bl.  25. 

(/)  Day  V.  Trig-,  1  P.  Wms.  286.  See  also  Rose  v.  Barflet,  Cro.  Car.  292  ;  Danes  v. 
Gibbs,  3  P.  Wms\  26  ;  Knotsford  v.  Gardiner,  2  Atk.  450  ;  Doc  v.  Williams,  sup. ;  Randal 
V.  Riccardson,  1  H.  Bl.  26,  n.  a. 


(1)  Grant  of  all  the  sliare  and  interest,  passes  estate  in  possession  and  reversion.  Sowle 
V.  Sowle,  10  Pick.  377. 


64  crabb'slawofrealproperty. 

■*pa  1  *^^^^  intent  of  the  devisor  may  be  collected  ;(7??)  if  therefore,  he 
L  J  devises  all  his  real  estate,  copyhold  lands  will  pass  ;(n)  and  money 
directed  to  be  laid  out  in  land  will  pass  in  a  devise,  by  the  words  "  all  my 
lands,  tenements  and  hereditaments  whatsoever  and  wheresoever."(o)(l)  So, 
if  land  be  granted  to  a  man,  impliedly  a  way  will  pass,  as  where  one  acre 
is  granted  in  the  midst  of  tv»'-enty,  the  grantee  may  pass  over  the  lands  of 
the  grantor  to  his  own  land  w^ilhout  being  a  trespasser. (/>) 


It.  ^1^  tolieit  nnmrs  die  ^oil  WM  ^nnn, 

87.  By  the  grant  of  a  messuage  or  house,  the  orchard,  garden  and  curti- 
lage occupied  therewith,  will  pass ; ((7) (2)  sed  contra  as  to  the  garden  ;(r) 
and  so,  an  acre  or  more  may  pass  by  the  name  of  a  house,  (s)  So,  by  a 
devise  of  a  messuage  or  house,  land  will  pass  ;(^)  but  what  shall  be  said  to 
pass  by  a  devise  is  a  question  of  intention  ;(w)  and  unless  it  clearly  appears 
that  the  testator  meant  to  extend  the  word  "appurtenances"  beyond  its  tech- 
nical sense,  lands  usually  occupied  with  a  house  will  not  pass  under  a  devise 
of  a  messuage  with  the  appurtenances, (f)  particularly  if  the  land  is  at  a 
distance. (zf>) 

A  cottage  is  a  little  house  without  land,  and  by  that  name  a  little  dwelling- 
-.  house  without  land  will  pass  ;{x)  it  *was,  however,  the  purpose  of 
L  -J  the  .31  Eliz.  to  prevent  the  practice  of  building  cottages  without 
land,  but  that  statute  is  now  repealed. (a) 

By  a  grant  of  wood  it  is  said  that  the  land  passes. (6)  In  Whilster  v. 
Paslow(c)  it  was  held  that  by  an  exception  in  a  lease  of  "  all  woods,  under- 
woods, coppices,  and  hedge-rows,"  the  soil  itself  is  excepted,  but  by  an  ex- 
ception of  "  all  timber  trees,"  no  soil  is  excepted  but  that  in  which  they 
grow;  and  in  Pincomb  v.  Thomas(f?)  a  sale  of  «'all  saleable  underwoods 
growing"  does  not  pass  the  soil. (3) 

The  word  "farm"  properly  signifies  a  capital  or  principal  messuage,  and 

(ot)  Dy.  280,  b. 

(n)  2  Eq.  Ca.  Ab.  234  ;  but  sec  Haslewood  v.  Pope,  3  P.  Wms.  322.  Sec  also  Lane  v. 
Stanhope,  6  T.  R.  345  ;  Doe  v.  Lucan,  (Earl),  9  East,  448. 

(0)  Rashley  v.  Master,  3  B.  C.  C.  99. 

(p)  F.  N.  B.  183  ;  Shcp.  Touclist.  96,  (N.  B.) 

(7)  Hill  V.  Grantre,  Plowd.  170;  Garden  v.  Tuck,  Cro.  El.  89;  S.  C.,  nom.  Chard  v. 
Tuck,  3  Leon.  14  ;  1  Inst.  5,  a,  .56,  b  ;  Bcttisworth's  case,  2  Co.  32.  See  also  Br.  Feoti".  53. 

(r)  Kcilw.  57  ;  Moor,  24,  pi.  82.  (s)  1  Inst.  5  b. 

(0  Doe  V.  Collins,  2  T.  R.  502  ;  Doc  v.  Martin,  2  Bl.  1148. 

(m.)  Gulliver  v.  Poynt7,,  2  Bl.  726;  S.  C,  3  VVils.  141. 

(m)  Doc  v.  N'orton,  1  B.  &  P.  53 ;  Doe  v.  Lucan,  (Eirl),  9  East,  448.  See  also  2  Saund. 
401,  Wms.  Ed. 

(?<>)  Hearn  v.  Allen,  Cro.  Car.  57  ;  S.  C,  Hutt.  85.  (x)  Shep.  Touchst.  91. 

In)  See  Dig.  P.  i.  tit.  CoUagfcs. 

(/>)  1  Inst.  4,  b;  Ives  and  Synic's  case,  5  Co.  11  ;  but  see  Bro.  Grants,  167. 

(c)  Cro.  Jac.  487.  {d)  Id.  524. 

(1)  The  election,  not  the  right  to  elect,  reconverts  property  into  its  original  state,  after 
having  been  converted  by  devise  or  contract.    Craig  v.  Leslie,  .3  Wheat,  556 ;  ante,  52,  n.  2. 

(2)  Homstcad.  Woodman  v.  Lane,  7  N.  H.  245. 

(3)  Ante,  19,  n.  1. 


BY    WHAT    NAMES    THE    SOIL    WILL    PASS.  65 

■X  great  quantity  of  demesnes  thereto  belonging,  and  by  that  name  houses, 
lands  and  tenements  might  pass  ;(e)  but  in  its  modern  acceptation,  it  is  taken 
for  that  which  is  held  by  a  person  standing  in  the  relation  of  tenant  to  a  land- 
lord ;(§•)  and  the  word  "farm"  in  a  will  is  sufficient  to  pass  a  leasehold 
estate,  if  it  appear  to  have  been  the  testator's  intention  that  it  should  so 
pass.(/i)     So,  by  the  grant  of  all  farms,  leases  for  years  may  pass.(i) 

By  the  name  of  mines  or  minerals  of  lead,  &c.  the  land  itself  shall  pass  in 
a  grant  if  livery  be  made,  and  it  might  formerly  be  recovered  in  an  assize  ;(A') 
but  see  3  &.  4  W.  4,  c.  27,  abolishing  these  real  actions.  Dig.  P.  iii.  tit. 
Limitations  ;  and  so,  by  the  grant  of  a  fold-course,  it  is  said  that  lands  and 
tenements  may  pass.(/c) 

So,  if  a  man  have  a  forest,  park,  chase  or  warren  in  his  own  ground,  and 
he  grant  the  same,  hereby  not  only  the  privilege,  but  the  land  itself  passes  ;(/i) 
but  if  the  ground  be  another's,  or  if  it  be  his  own,  and  the  grant  be  only  of 
the  game,  &c.  the  soil  itself  will  not  pass.(/c) 

If  a  man  grants  aqiiam  suam  the  soil  shall  not  pass,(l)  but  *the  ^-^.y^  -i 
piscar)''  only  ;(/)  but  by  the  name  of  a  pool  or  pit  the  water  and  land  L  -* 
will  both  pass.(??i)(2)  Whether  by  the  grant  of  a  several  fishery  the  land 
passes  is  not  quite  settled. (n)  Lord  Coke  lays  it  down,  that  it  does  not 
pass  ;(o)  but  others  maintain  that  one  having  a  several  fishery  must  be  owner 
of  the  soil.(p)  In  Partheriche  v.  Mason, (7)  it  was  held  that  where  a  man 
has  a  several  fisherjs  the  presumption  is  that  he  is  owner  of  the  soil.  As  to 
the  right  of  fisherj'-,  which  is  an  incorporeal  hereditaments,  see  post,  §  304. 

By  a  grant  of  the  profits  of  the  soil  the  land  will  pass,  as,  if  a  man  grant 
all  his  meadows  or  all  his  pastures,  the  land  passes,  for  what  is  land  but  the 
profits  thereof  ?(r)(3)  But  as  to  what  was  formerly  understood  by  the  ves- 
ture of  the  land,  see  Keilw.  48;  4  Leon.  43;  Palm.  174;  0\v.  37.  On 
the  other  hand,  if  a  man  grant  the  herbage  of  the  land,  the  land  itself  will 
not  pass  ;(4)  because  the  grantee  has  only  a  particular  right  in  the  land  and 
shall  not  have  the  houses,  trees,  mines  and  other  real  things  ;(.s)  so,  if  a  man 
grants  a  liberty  to  dig  turves,  the  land  shall  not  pass,(/')(5) 

(c)  Plowd.  195  ;  1  Inst.  5,  a.  (g)  Lane  v.  Stanhope  (Lord),  6  T.  R.  353. 

(//)  lb.;  see  also  Doe  v.  Lucan  (Earl),  sup.  (i)  Bro.  Grants,  135. 

C^-)  1  Inst.  5,  a.  (Z)  1  Inst.  4,  b ;  Dav.  45.  (m)  1  Inst.  5,  a. 

(»i)  Kinnersley  v.  Orpc,  1  Doug.  56.  (n)  1  Inst.  4,  b. 

(  p)  Bro.  Trcsp.  pi.  42G ;  Sniilli  v.  Kemp,  2  Salk.  G37  ;  S.  C,  4  Mod.  186 ;  S.  C,  Cartli. 
385.  (7)  2  Chitt.  658. 

(r)  2  Plowd.  169  ;  1  Inst.  4,  a.  (s)  Moor,  355,  pi.  483. 

(<)  Plowd.  541 ;  Wilson  v.  Mackrcth,3  Burr.  1826  ;  Crosby  v.  Wadsworth,  6  East,  606. 

(1)  B}'  a  grant  including  a  river,  an  island  therein  docs  not  pass.  Jackson  v.  Halstcad, 
.5  Cow.  219. 

(2)  It  was  held  in  Hart  v.  Hill,  1  Wht.  124,  where  the  pool  was  below  low  water  mark, 
that  a  devise  of  a  fishing  place  passed  no  right  to  tlic  soil  of  the  adjacent  land,  but  such  a 
right  only  as  was  essential  to  the  exercise  of  the  devise ;  but  here  there  was  no  ownership 
in  the  soil  of  the  pool. 

(3)  Reed  v.  Reed,  9  Mass.  372,     Stewart  v.  Kcnower,  7  W.  &  S.  288. 

(4)  Rehoboth  V.  Hunt,  1  Pick.  224.     Clap  v.  Draper,  4  Mass.  26G. 

(5)  That  100  acres  should  be  left  common  for  the  use  of  the  town  for  building  stonea, 
t!ie  land  does  not  pass.     Worcester  v.  Green,  2  Pick.  425. 

July,  1846 5 


66  crabb's    law    of    real    property. 

[*71  ]  *SECTION  II. 

MANORS. 


§  88,  Definition. 

Reputed  Manor. 

Manor  cannot  be  divided. 


§  88.  What  passes  under  the  Word, 
Advowson. 
Lands. 


§  88.  A  manor  is  a  tract  of  land  originally  granted  by  the  king  to  a  person 
of  rank,  part  of  which  was  given  by  the  grantee  to  his  followers,  and  the 
rest  he  retained  under  the  name  of  his  demesnes,  and  that  which  remained 
uncultivated  was  called  the  lord's  waste  and  served  for  public  roads  and  for 
common  of  pasture  for  the  lord  and  his  tenants. 

A  manor  consists  of  demesnes  and  services  ;  whenever  the  demesnes  are 
severed  from  the  manor,  or  the  services  become  extinct,  then  the  manor  itself 
is  destroyed  ;(m)  but  although  many  manors  have  been  thus  destroyed,  yet 
they  continue  to  be  called  manors,  and  a  reputed  manor  will  pass  in  a  con- 
veyance by  the  word  "  manor."(a')  And  it  is  not  necesary  to  prove  a  manor 
to  be  a  continuing  manor  for  all  purposes. (i/) 

Manors  were  formerly  called  baronies,  and  are  still  called  lordships,  and 
each  lord  or  baron  was  empowered  to  hold  a  court  called  a  court-baron, 
which  was  an  inseparable  ingredient  of  every  manor;  and  if  the  number  of 
suitors  should  prove  not  suflicient  to  make  a  jury  or  homage,  that  is  two 
tenants  at  the  least,  the  manor  itself  is  lost.(;r) 

r  *79  1  *■'"'■  '^  ^  settled  rule,  that  a  manor  cannot  be  granted  at  this  day, 
L  J  a  manor  therefore  cannot  be  divided  by  the  act  of  the  part}^  for  that 
would  be  to  create  a  new  manor. (o)  And  although  a  manor  may  not  be 
divided  by  the  act  of  the  party,  yet  it  may  by  act  of  law,  if  therefore  upon  a 
partition  between  parceners,  parcels  of  the  demesnes  and  services  are  allotted 
to  each,  each  hath  a  manor,  being  in  by  act  of  law  ;(/;)  but  otherwise  joint- 
tenants,  co-parceners  and  tenants  in  common  fall  within  the  rule  that  a  manor 
cannot  be  divided  by  act  of  the  party. (/;) 

AVhatever  before  the  Statute  of  Frauds  might  pass  by  livery  of  seisin, 
either  in  deed  or  in  law,  might  pass  without  deed  ;(c)  therefore  not  only  the 
rents  and  services,  parcel  of  the  manor,  might  with  the  demesnes,  as  the 
principal  and  more  worthy,  pass  by  livery  without  deed,  but  all  things  regar- 
dant, appendant  and  a2:)purlenant  to  the  manor,  as  incidents  or  adjuncts  to 
the  same,  might  with  the  manor,  pass  without  deed.(c)     But  things  which 

{u)  Finch's  ease,  G  Co.  Gl. 

{x)  Finch's  case,  snp. ;  Tliinne  v.  Thinne,  1  Sid.  190  ;  S.  C,  1  Lev.  98. 

{yi  Soane  v.  Ireland,  10  East,  2.59.  See  also  Calth.  Read.  13  ;  Smith  v.  Smith,  2  Price, 
104;  Curzon  v.  Lomax,  5  Esp.  60;  Steel  v.  Prickot,  2  Stark.  4G6. 

(j)  Perk.  sect.  670  ;  Co.  Cop.  s.  31.  And  see  Scriven  on  Copyholds,  and  Watkins  on 
Copyholds. 

('/)  Acton's  case,  Dy.  288  ;  Miirrel  v.  Smith,  4  Co.  24  ;  S.  C,  Cro.  El.  252  ;  Mclwich 
V.  Lntcr,  4  Co.  266  ;  S.  C,  Cro.  El.  103;  Bright  v.  Forth,  Cro.  El.  442;  Finch's  case, 
sup. ;  ftlabie's  case,  Winch.  237  ;  Lord  North  and  Lady  Dacro,  Cary,  25  ;  Brown  v.  Gold- 
smith, Moor,  876;  S.  C,  1  Browal.  175  ;  S.  C,  Hob.  108  ;  Wheeler  v.  Twog-ood,  1  Leon, 
lis  ;  Lemon  v.  Blackwell,  Skinn.  191  ;  R.  v.  Buccleuch  (Duchess),  6  Mod.  151  ;  but  see 
Kitch,  7  ;  Harris  v.  Haics,  Cro.  El.  19  ;  Morris  v.  Smith,  Cro.  El.  39  ;  S.  C,  Ow.  138  ;  S. 
C,  nom.  Marshc  and  Smith's  case,  1  Leon.  26  ;  Denny's  case,  2  Leon.  290  ;  Neale  v. 
Jackson,  4  Co.  26,  where  this  rule  is  qualified. 

(6)  Marshe  and  Smith's  case,  1  Leon.  26.  (c)  1  Last.  121,  b. 


I 


WHAT    PASSES    UNDER    THE     NAME     OF    HOUSE.  67 

are  not  parcel  of  the  manor,  will  not  pass  by  the  grant  of  a  manor,  and 
therefore  if  one  have  a  manor,  and  after  purchase  a  warren  to  it,  and  then 
grant  away  the  manor,  the  warren  will  not  pass  thereby ;  and  yet  if  by  the 
union  time  out  of  mind  they  have  gotten  the  reputation  of  appendancy, 
perhaps  by  the  grant  of  the  manor,  cum  perlinenliis,  these  things  may 
pass.((/) 

By  the  grant  of  a  manor  also  divers  towns  may  pass  ;  so,  an  honour  may 
pass  by  this  name,  and  so  also  a  castle  and  a  ^hundred,  and  one  *~q  i 
manor  also,  that  is  parcel  of  another,  may  pass  by  the  grant  of  that  L  ' '  "^  J 
manor,  whereof  it  is  parcel.  So,  on  the  other  hand  by  the  grant  of  an  honour, 
may  pass  one  or  more  seignories,  manors  and  divers  other  lands  ;  and  so  a 
castle  may  contain  one  or  more  manors  ;(e)  but  by  a  castle  most  commonly 
is  signified  no  more  than  the  house  or  building  and  the  parcel  of  ground 
inclosed,  wherein  it  stands. 

By  the  17  E.  2,  de  Prserogativa  Regis  (see  Dig.  P.  ii.  tit.  Advowson) 
the  Glueen's  grant  of  a  manor  will  not  grant  an  advowson  appendant,  without 
express  mention  of  it ;  but  where  the  King  granted  a  manor  with  all  its 
appurtenances,  as  fully  as  the  same  came  to  and  were  possessed  by  him,  an 
advowson  appendant  to  the  manor  was  held  to  pass  ;(/)  and  the  grant  of  a 
manor  with  advowsons,  &c.  thereunto  belonging,  was  held  not  to  extend  to 
an  advowson  served  in  ancient  times,  though  it  was  appendant  three  hundred 
years  ago.(^)  If  a  man  seised  of  a  manor  in  D.,  devises  all  his  lands  and 
hereditaments  in  D,,  the  manor  being  an  hereditament  shall  pass  •,{h)  but  if 
he  has  lands  in  D.,  not  parcel  of  the  manor,  it  seems  doubtful  whether  the 
manor  would  pass  by  a  devise  of  "  all  his  lands"  there. (A) 


SECTION  III. 

HOUSES. 


§  89.  How  a  House  is  protected. 
In  Execution  of  Process. 
What  is  Burg-laiy. 
Statutory    Provisions   relating-   to 

Houses. 
What  included  in  a  Messuage, 


§  89.  Outhouses. 

Yards  and  Courts. 

Curtilage. 

Gardens  and  Orchards. 

Waste. 


§  89.  As  to  what  land  passes  under  the  name  of  a  house  or  messuage, 
see  ante,  §  87.  A  house  is  so  far  protected  by  *law,  that  in  the  ^^ 
execution  of  civil  process,  the  officer  cannot  justify  the  breaking  open  L  '  -^ 
an  outer  door  or  window,(i)  but  he  may  break  open  inner  doors. (A-)  This 
privilege,  however,  extends  only  to  the  house  of  the  party  himself,  not  to 
the  house  of  a  stranger  to  which  he  has  fled.(/)  So,  if  an  officer  is  locked 
in,  he  may  justify  breaking  out.(m)     So,  if  the  party  escape,  after  having 

{d)  Plowd.  54  ;  1  Inst.  5,  a.  (0  Plowd.  54  ;  1  Inst.  5,  a.    - 

(/)  Whistler's  case,  10  Co.  G3,  a.  {g)  R.  v.  Durham,  (Bn.)  Com.  3G1, 

(A)  Hazlewood  v.  Pope,  3  P.  Wms.  322.  (i)  Fosi.  31!). 

{k)  Lee  v.  Gansel,  Cowp.  1.  (/)  5  Co.  93. 

(m)  2  Hawk.  P.  C,  c,  14,  s.  11 ;  1  East,  P.  C,  c.  5,  s.  87. 


68  CR abb's   law   of   real  property. 

been  legally  arrested,  the  officer  may,  upon  fresh  suit,  break  open  even  the 
outer  door  in  order  to  retake  him.(«) 

To  constitute  a  burglary  or  breaking  into  a  house,  it  must  be  the  dwelling 
or  resfular  residence  of  the  owner,(o)  therefore  a  set  of  chambers  in  an  inn 
of  court  or  college  is  deemed  a  distinct  dwelling-house  for  this  purpose  :(jo) 
so,  even  a  loft,  over  a  stable  used  as  the  abode  of  a  coachman,  may  be  bur- 
glariously entered  :(5)  but  burglary  cannot  be  committed  in  a  tent  or  booth 
at  a  fair.  See  further  1  Chitt.  Burn's  Just.,  534  et  seq.  ;  also  Dig.  P.  i.  tit. 
Larceny;  and  also  as  to  setting  fire  to  houses,  Dig.  P.  i.  tit.  Malicious 
Injuries  ;  as  to  destroying  houses  in  riots,  Dig.  P.  i.,  ii.,tit.  Hundred;  also 
as  to  what  constitutes  keeping  house  or  departing  therefrom  under  the  bank- 
rupt laws.  Dig.  P.  i.,  ii.,  tit.  Bankrupt  ;  as  to  the  provisions  for  regulating 
the  building  of  houses,  and  the  law  respecting  party-walls,  see  Dig.  P.  ii.  tit. 
Building,  also  the  last  Building  Act,  7  &  8  Vict.  c.  84. 

A  messuage  was  formerly  thought  to  include  more  than  a  house, (r)  but 
this  is  now  overruled  ;(s)  but  any  prescriptive  claim  in  respect  of  a  messuage 
must  be  made  in  respect  of  an  ancient  messuage. (/) 

P  ««-  -1  *A  messuage  or  mansion  includes  not  only  the  dwelling-house 
L  '  J  but  also  all  outhouses,  as  barns,  stables,  cowhouses,  and  dairyhouses, 
if  they  be  parcel  of  the  mansion,  although  they  be  not  under  the  same  roof 
or  lying  contiguous  to  it  ;(i<)  and  the  conveyance  or  demise  of  a  messuage 
passes  all  under  the  same  roof,  unless  at  the  date  of  the  instrument,  some 
part  had  been  separated  by  a  petition,  and  not  occupied  with  the  messuage 
for  many  years  ;'f)  and  so  a  conveyance  of  a  messuage  "  with  the  appur- 
tenances" will  pass  fixtures  usually  removable,  unless  they  be  parted  there- 
from before  the  execution  of  the  deed.(a:)  But  by  the  7  &  8  G.  4,  c.  29,  s. 
13.  no  building  althoufrh  within  the  same  curtila<re  with  the  dwelling-house, 
and  occupied  therewith,  shall  be  deemed  to  be  part  of  such  dwelling-house 
for  the  purpose  of  burglary,  or  for  any  of  the  purposes  aforesaid,  unless  there 
be  a  communication  betvreen  such  building  and  dwelling-house,  either 
immediate  or  by  means  of  a  covered  and  inclosed  passage  leading  from  one 
to  the  other.  The  term  "  outhouse"  may  be  appHed  to  a  school-room, 
separated  from  the  dwelling-house  by  a  narrow  passage. (y)  And  before  the 
above-mentioned  Act  it  was  held  applicable  to  a  dairyhouse  or  mill-house,  if 
connected  with  the  dweUing-house.(2)  Outhouses  are  mentioned  in  the 
Larceny  Act,(fl>]  and  also  in  the  Vagrant  Act,  where  it  is  provided  that  any  per- 
son found  lodging  in  any  barn  or  outhouse,  &c.,  without  giving  a  satisfactory 
account  of  himself,  shall  be  deemed  a  rogue  and  vagabond.  An  open  build- 
ing standing  out  of  the  sight  of  the  dwelling-house  has  been  held  not  to  be 
an  outhouse  within  the  Larceny  Act  ;(6)  so,  not  a  cart-hovel  standing  in  a 
field  away  from  other  buildings  ;(c)  so,  it  seems  a  mill  was  not  deemed  an 

(b)  Genner  v.  Sparkes,  1  Salk.  79  ;  1  Hale,  459  :  2  Hawk,  snp. 
(0)  FuUer's  case,  2  East,  P.  C.  498.  (p)  1  Hale,  556  ;  1  Hawk,  c  38,  s.  11. 

Iq)  R.  V.  Turner,  1  Leach,  305.  (r)  Keilw.  57. 

(s)  Doe  V.  Collins,  2  T.  R.  498.     See  §  87. 

(0  Dunstan  v.  Tresicer,  5  T.  R.  2  ;  Stott  v.  Stott,  ]  6  East,  343.  And  see  further,  post, 
§  459.  (u)  1  Hale,  553,  559, 

(t)  2  Stark.  508.  (x)  2  B.  ic  C.  76.     See  ante,  §  19. 

(y)  R.  &  R.  C.  C.  295.  (z)  3  Inst.  67. 

(«)  See  Dig.  P.  i.  tit.  Larcenv.  (6)  R.  v.  Ellison,  1  M.  C.  C.  336. 

(cj  R.  T.  Parrot,  6  C.  &.  P.  402. 


WHAT    PASSES    r  \  D  E  R     THE     NAME     OF     H  0  T  5  E.  69 

out-house  before  that  *act.((f)  Outhouses  are  also  expressly  pro-  ^  ^^  -. 
tected,  by  the  7  &  8  G.  4,  c.  31,  from  destruction  by  rioters.(e)  L    '     -^ 

Yards  and  courts  commonl)-  contiguous  to  houses,  and  going  with  them 
as  appurtenances,  are,  if  inclosed,  protected  by  tbe  above-mentioned  Vagrant 
Act,  and  in  the  Highv\-ay  Act  the)'  are  also  mentioned  as  places  not  to  be 
taken  for  the  widening  of  any  highwa5-.(y")  If  a  yard  is  common  to  several 
houses,  let  to  different  tenants,  the  possession  thereof  belongs  to  the  landlord 
subject  only  to  a  right  of  way  in  such  tenants. (s")  An  area,  Hke  a  yard, 
is  provided  for  in  the  Vagrant  Act ;  and  stealing  from  an  area  is  felony  under 
the  Larceny  Act,  but  breaking  into  an  area  was  not  burglary  at  common 
law.(A)  Curtilages  are  court  yards,  or  back  sides  or  pieces  of  ground  lying 
near  to  and  included  within  the  same  fence  as  the  dwelling-house,  which,  it 
seems,  may  be  sufficiently  large  to  allow  cattle  to  be  levant  and  couchant 
therein,  and  therefore  that  a  person  may  prescribe  for  common  appurtenant 
in  respect  of  a  house  and  a  curtilage. (/)  As  to  the  claim  of  an  easement  to 
let  water  flow  into  the  back  side  of  another  person's  house  see  Reynolds  v. 
Clarke  ;^/r)  also  post,  §  418  ;  and  as  to  nuisances  generally,  see  post,  Injuries 
TO  Things  Real. 

A  garden  is  parcel  of  a  house  and  passes  with  it  (/)  so,  by  the  grant  of 
a  messuage  or  house,  the  orchard,  garden  and  curtilage  pass  without  the 
word  "  appurtenances. "(7?i)  B\-  the  Larceny  Act  steaHng  an)-  plant,  root, 
&c.  growing  in  any  garden,  orchard,  nurser)'-ground,  hot-house,  green-house 

or  conservatory,  is  a  felony  if  a  second  offence,  and  *punishable  as      ^ -, 

larceny.  Bv  the  Malicious  Injuries  Act  any  injury  to  the  extent  of  l  ' '  -^ 
one  pound  to  any  tree,  sapling  or  shrub  growing  in  any  park,  pleasure-ground, 
garden,  orchard  or  avenue,  or  in  any  ground  belonging  to  any  dwelling- 
house,  is  made  felony,  and  punishable  with  transportation  for  seven  years. 
And  the  destroying  or  damaging  any  plant,  &c.  growing  in  any  garden,  «fcc. 
(see  supra)  is  made  punishable  by  a  forfeiture  of  20/.  or  six  calendar  months' 
imprisonment.  By  the  Highway  and  Turnpike  Acts  provisions  are  made  in 
favour  of  gardens  and  orchards  as  in  the  case  of  yards,  ^n) 

A  tenant  is  not  at  liberty  to  plough  up  strawberry  beds  in  a  garden  being 
an  injur)'  to  the  inheritance,  although  such  things  may  be  appraised  and  paid 
for  as  between  outcfoing  and  incomincr  tenants. (o)  but  he  mav  remove  trees 
growing  in  a  nurser)'-ground  in  the  necessar)'  course  of  his  trade  ;  see  further, 
post,  Waste. 

{d)  2  East,  P.  C.  1000  :  1  Leach,  49.  (e)  See  J)\g.  U  ii-  ti*-  Hundred. 

(/)  See  Di?.  p.  ii.  tit.  Highways.  {g)  Herbert  v.  Thomas.  1  Gale.  53. 

(ft)  R.  V.  Davis,  R.  &  R.  C.  C.  32-2. 

(i)  Sholes  V.  Hargreaves,  5  T.  R.  4o.  And  see  Eiaerton  v.  Selbv,  2  Ld.  Rami.  1015  ; 
S.  C,  1  Salk.  169.  (t)  2  Lord  Ravm.  1399. 

(i)  Br.  Feoffiii.  de  Terre,  53 ;  Bettisworth's  case,  2  Co.  32. 
(w)  Plowd.  171 ;  1  Inst.  5,  b ;  56,  a,  b.     See  ante,  §  87. 
(n)  See  Dig.  P.  iii.  tit  Highways.  (o)  WethcreU  \.  Howells,  1  Camp.  227. 


70 


crabb's  law   of   real    property. 


SECTION  IV. 


CHURCHES. 


§  90,  What  comprehended  under  the  word 
"  Church.." 

"Cliancel." 

Property  in  Pews. 

I\Iust  be  appurtenant  to  a  House. 

Statutory  provisions  as  to  Churches. 


§  91.  Interest  in  the  Glebe. 

Titlies  in  respect  of  the  Glebe. 
Emblements. 
92.  Freehold  in  the  Churchyard. 
Right  of  Burial. 
Trees  in  the  Churchyard. 


§  90.  The  word  "  church,"  with  the  rights  thereto  belonging,  include 
the  glebe,  parsonage,  and  tithes  ;  the  right  of  presentation  to  which,  called  an 
advowson,  is  an  incorporeal  hereditament. (/?) 

*A  church  is  otherwise  called  a  benefice,  which  is  either  a 
L  -^  rectory  or  vicarage.  By  the  grant  of  a  rectory  or  parsonage  Avill 
pass  the  house,  the  glebe,  the  tithes  and  offerings  belonging  to  it ;  and  by 
the  grant  of  a  vicarage  will  pass  as  much  as  belongs  to  it,  as  the  vicarage- 
house,  &C.(<J') 

After  presentation,  the  freehold  is  in  the  parson,  and  he  may  maintain 
ejectment  for  recovery  of  the  same.(r)  So,  no  one  may  preach  in  his 
pulpit  without  his  consent. (s)  So,  if  the  walls,  windows,  or  doors,  or  any 
part  of  the  freehold  of  the  church,  is  injured  by  any  person,  the  incumbent 
of  the  rectory  may  have  his  action  for  the  damages ;(?)  but  while  the  church 
is  in  his  hands,  he  has  it  under  certain  regulations  and  restrictions. («) 
Therefore  he  cannot  alienate  any  part  of  the  chancel  so  as  to  deprive  his 
successors  of  their  power  over  it. (a:)  So,  in  the  case  of  Cowen  and  Pym,(?/) 
it  was  held,  that  albeit  the  freehold  of  the  church  be  in  the  parson,  yet  if  the 
lord  of  a  manor  or  any  other  has  a  house  in  a  parish,  and  he  and  all  those 
whose  estates  he  has  in  the  mansion,  has  had  a  seat  in  an  aisle  of  the  church 
for  him  and  his  family  only,  and  has  repaired  it  at  his  proper  charges,  the 
seat  therein  shall  be  deemed  his  frank  tenement ;  and  so  in  Francis  and 
Ley,[z\  the  repairing  an  aisle  in  a  church  and  the  using  to  sit  therein  was 
held  to  make  this  proper  and  peculiar  to  his  house,  and  he  could  not  be 
displaced  ;  but  the  constant  sitting  and  burying  there  without  using  to  repair 
it,  gains  no  peculiar  property. (a) 

There  can  be  no  property  in  pews  ;  the  ordinary  may  grant  a  pew  to  a 
particular  person  while  he  resides  in  the   parish,  or  there  may  be   a  pre- 
scription by  which  a  faculty  is  presumed. (i)     Non-parishioners,  whether 
^  Q  -,  extra-parochial  or  ^residing  in  another  parish,  have  no  such  rights  ; 
L        -^  so  soon  as  an  occupier  of  a  pew  ceases  to  be  a  parishioner,  his  right 


(p)  See  post,  §  117 ;  also  Dig-.  P.  i.,  ii.,  iii.  tit.  Advowson,  Benefice,  Presentation. 

((/)  Br.  Grant.  86  :  Sliep.  Touchst.  93.  (>)  Doe  v.  Fletcher,  8  B.  &,  C.  25. 

(s)  Thurton  v.  Reisnolds,  12  Mod.  433.         (t)  Wats.  CI.  L.  c.  33. 

(./)  Clifford  V.  Wicks,  1  B.  .S^  A.  498.  (x)  lb.  507.  (y)  3  Inst.  202. 

(2)  3  Cro.  Jac.  366.  («)  2  Co.  105. 

(li)  Barrow  v.  Kien,  1  Sid.  361 ;  Hawkins  v.  Coleman,  3  Phill.  16.  See  also  Blake  v. 
Elsbornc,  3  Hagg-.  733;  Fuller  v.  Lane,  2  Add.  425;  Walter  v.  Sumner,  1  Consist.  317; 
Pettman  v.  Bridger,  1  Phill.  323;  Hawkins  v.  Compiegno,  3  Phill.  11. 


BURIAL  IN  CHURCHES  AND  CHURCHYARDS.        71 

to  the  pew  ceases  ;(c)  although  it  should  seem,  that  even  a  non-parishioner 
may  claim  an  aisle  or  a  chancel  by  prescription, (f/)  but  he  must  have  such 
right  as  appurtenant  to  a  house,  although  the  house  be  out  of  the  parish. (fj 
If  a  pew  is  rightly  appurtenant,  the  occupancy  of  it  must  pass  with  the 
house,  and  individuals  cannot,  by  contract  between  themselves,  defeat  the 
general  right  of  the  parish,(/)  a  prescriptive  right  cannot  be  exercised  by  a 
transfer  to  a  non-parishioner,(/)  but  a  right  to  a  faculty  pew  may  be  appor- 
tioned, if  the  house  be  divided  into  two,(^^)  and  where  the  prescription  is 
interrupted  a  jury  is  not  bound  to  presume  a  faculty  from  long  undisturbed 
possession  ;(7j)  and  reparation  from  time  to  time  is  necessary  to  be  pleaded 
and  proved  in  order  to  make  out  a  prescriptive  right  to  a  pew;(i)  but  lining 
and  putting  new  cushions  is  however  not  a  sufficient  reparation. (A-)  The 
parson  or  rector  impropriate  is  entitled  to  the  chief  seat,(/)  and  the  vicar  may 
by  prescription  claim  a  seat  in  the  chancel. (7?i)  As  to  the  regulation  of  pews 
under  the  New  Church  Building  Acts,  see  Dig.  P.  ii.  tit.  Church  (Pews.) 
As  to  a  right  to  a  pew  as  an  easement,  see  post,  §  481  et  seq. 

By  the  canon  law,  the  repair  of  the  church  belongs  to  the  rector,  but  by 
the  common  law  it  belongs  to  the  parishioners  ;(n)  but  generally  the  parson 
is  bound  to  repair  the  chancel  ;(o)  so,  impropriators  are  bound  of  common 
*right  to  repair  the  chancels  \{p)  and  it  seems  that  they  are  com-  ^g„  -, 
pellable  by  the  sequestration  of  the  Spiritual  Court. («^)  L 

Where  there  is  a  rector  and  a  vicar,  it  is  said  they  shall  contribute. (r) 
As  to  the  repairing  and  building  of  churches  under  the  Church  Building 
Acts,  see  Dig.  P.  ii.  tit.  Church  Building;  see  also  as  to  the  breaking  into 
and  steahng  from  churches  Dig.  P.  i.  tit.  Larceny  ;  as  to  setting  fire  to 
churches.  Id.  P.  i.  tit.  Malicious  Injuries  ;  as  to  destroying  churches  in  a 
riot.  Id.  P.  iii.  tit.  Hundred  ;  as  to  levying  church  rates,  Id.  P.  iii.  tit.  Rates  ; 
as  to  exempting  churches  from  rates  3  &  4  W.  4,  c.  30. 

91.  By  the  common  law  the  rector  has  the  freehold  in  the  church3'ard, 
subject  to  the  rights  of  the  parishioners  to  be  buried  there,  and  he  may  bring 
an  action  of  trespass,  if  his  right  be  invaded  ;(5)(1)  so,  the  trees  and  the 
grass  belong  to  him,  and  if  cut  down,  the  incumbent  may  bring  his  action, 
and  this  is  not  triable  in  the  Spiritual  Court  ;(f)  so,  the  lessee  of  the  incum- 
bent, if  the  churchyard  be  let,  may  bring  his  action,  the  soil  and  freehold 
being  in  the  incumbent,(M)  although  where  there  is  both  a  rector  and  a  vicar, 

(c)  Byerley  v.  Winder,  3  B.  &  C.  19  ;  S.  C,  7  D.  &,  R.  564. 

((/)  Fuller  V.  Lane,  sup. 

(e)  Lousier  v.  Haywood,  1  Hagg.  294  ;  S.  C.  1  Y.  .t  J.  583.         (/)  2  Consist.  319. 

is)  Harris  v.  Drewc,  2  B.  &,  Ad.  164.  (h)  3  :\ran.  &  Ry.  389. 

(i)  3  Add.  6.  (/.•)  3  Phill.  331. 

{I)  Hall  and  Ellis,  Nov,  153.  (m)  Johns.  242,  213. 

(r?)  Ball  V.  Cross,  1  Salk.  1G4  ;  1  Holt,  138. 

(o)  Pense  v.  Prowse,  1  Ld.  Rayra.  59  ;  S.  C,  nora.  Pierce  v.  Prowse,  1  Salk.  164 ;  S. 
C,  Carth.  360. 

(p)  Gibs.  199.  iq)  Wats.  CI.  L.  c.  39. 

(r)  Lindw.  253.  (c)  1  Curteis,  260. 

.     (0  Hilliurd  V.  Jefferson,  1  Lord  Raym.  212  ;  Br.  Abr.  "  Trcsp."  210. 

(u)  2  Roll.  Abr.  337. 


(1)  In  Pennsylvania,  most  of  the  cliurches,  &c.  are  licld  cither  by  the  corporation,  or 
trustees  for  the  society  ;  in  them  is  vested  tlic  title,  and  as  respects  third  persons,  the  exclu- 
sive right  of  maintaining  their  rights  by  action.     Ungst  v.  Shortz,  5  Wht.  506. 


72  CRABb's  LAW  OF  REAL  PROPERTY. 

it  seems  doubtful  to  whom  the  trees  belong.(.r)  And  such  freehold  is  said 
to  be  in  him  for  public  purposes,  and  not  for  private  emolument  ',{y)  there- 
^re,  although  a  clergyman  cannot  be  compelled  to  bury  the  corpse  of  any 
person,  though  a  parishioner,  in  any  particular  vault  or  other  particular  part 
of  the  churchyard, (=■)  yet  he  cannot  grant  the  exclusive  use  of  a  vault — 
only  leave  to  bury  there  in  each  particular  instance  ;(fl)  so,  no  man  can  make 
a  private  door  into  the  churchyard  without  the  consent  of  the  minister  whose 
-,  freehold  the  church  is,  and  a  faculty  also  from  the  *bishop.(i)  So, 
L  *^^  J  no  one  can  build  on  a  churchyard  without  his  consent  ;(c)  yet  a  man 
may  prescribe  to  have  a  way  through  a  church  or  churchyard.(rf) 

A  rector  may  cut  down  timber  growing  in  the  church  yard  for  the  repair 
of  the  parsonage  house  or  the  chancel,  but  not  for  any  common  purpose,  and 
this  he  may  be  justified  in  doing  under  the  35  E.  1  ;(e)  so,  he  may  cut  down 
timber  for  repairing  any  old  pews  that  belong  to  the  rector)-. (e) 

The  churchwardens  are  by  virtue  of  their  office  to  see  that  the  footpath? 
are  kept  in  proper  order,  and  the  fences  in  repair ;(/)  and  it  seems  that  by 
custom  the  parishioners  are  bound  to  make  the  repairs  :{g)  yet  if  the  owner 
of  lands  adjoining  to  the  churchyard  have  used,  time  out  of  mind,  to  repair  so 
much  of  the  fence  thereof  as  adjoineth  to  their  ground,  such  custom  is  a 
o-ood  custom,  and  the  churchwardens  have  an  action  at  common  law  for  the 
same.(/i)  As  to  the  repair  of  the  churchyard  under  the  statute  35  Ed.  1. 
see  Dig.  P.  ii.  tit.  Church  (Churchyards,)  and  the  statute  against  converting 
lands  into  churchyards,  P.  iii.  tit.  Mortmain. 

92.  After  induction  the  freehold  of  the  glebe  is  in  the  parson  ;(/)  yet  he 
may  not  alienate  the  same, (A-)  otherwise  than  he  is  authorised  so  to  do  by  the 
17  G.  3,  c.  21,  and  other  acts  empowering  the  incumbent  under  certain 
restrictions  to  mortgage  the  glebe  for  the  purpose  of  making  parsonages ;(/) 
or  to  sell  or  exchange  the  glebe  lands  for  particular  purposes  ;(m)  so,  an 
P  ^  -,  incumbent  may  not  commit  *waste  by  cutting  down  trees  ;(n)  but 
L  -^  the  digging  in  glebe  lands  has  been  held  not  to  be  waste. (o) 

Glebe  lands  in  the  hands  of  the  parson  shall  not  pay  tithes  to  the  vicar, 
though  endowed  generally  of  the  tithe  of  all  lands  in  the  parish  ;  nor  being 
in  the  hands  of  the  vicar  shall  they  pay  tithe  to  the  parson,  it  being  a  rule 
in  the  canon  law  that  the  church  shall  not  pay  tithe  to  the  church. (;;) 

By  the  28  H.  8,  c.  11,  s.  6,  it  is  provided  that  if  the  incumbent  die,  after 
having  manured  and  sown  the  glebe  land,  he  may  bequeath  the  profits  of 
the  corn  growing  thereon  ;  "but  if  his  successor  be  inducted  before  severance 

(x)  Lindw.  267. 

(V)  Bryan  v.  Whistler,  8  B.  &  C.  203  ;  S.  C.  2  Man.  &  Ry.  330. 

(z)  Ex  parte  Blackmore,  1  B.  &  Ad.  122.  (o)  Bryan  v.  Whistler,  sup. 

(/))  Deg^e,  Par.  L.  88,  89. 

(c)  St.  George's,  Hanover  Square,  (Rector,  &c.)  v.  Steuart,  2  Str.  1126. 

id)  2  Roll.  Abr.  265.  (e)  Strachy  v.  Francis,  2  Atk.  217. 

(01  Curteis,  621.  (g)  2  Inst.  439. 

(A)  2  Roll.  Abr.  287  ;  Gibs.  194.  (i)  Gibs.  661. 

{k)  Lind.  149.  (/)  See  Dig.  P.  ii.  tit.  Benefices. 

{m)  Id.  P.  i.  ii.  iii.  tit.  Church,  Inclosure,  Land-tax  Redemption,  Leases,  &c 

(n)  Gibs.  661.  T-  .    —    c 

(o)  The  Countess  of  Rutland's  case,  1  Lev.  107;  S.  C,  1  Sid.  152;  S.  C,  1  Iveb.  do.  ;  5 

Mod.  917.  • 

{p)  Blinco  V.  Marson,  Moor,  457  ;  S.  C,  nom.  Bllnco  v.  Marston,  Cro.  El.  4(9  ;  S.  C, 

Sav.  3  ;  Brownl.  69. 


MILLS. 


73 


thereof,  he  shall  have  the  tithe  of  the  same,  sed  secus  if  he  be  inducted 
after.(7) 


SECTION  V. 


MILLS. 


§  93.  Suit  at  Mill. 

Who  obligfcd  to  do  Suit 
Extent  of  the  Riglit. 


§  93.  Mills  when  Corporeal  Hereditaments. 
Tithes  for  Mills. 


93.  Mills  had  formerly  a  great  value  attached  to  them  from  the  prescrip- 
tions and  customs  which  gave  the  lords  of  manors  a  risfht  to  require  the  inha- 
bitants within  the  manor  to  grind  their  corn  there, (r)  and  the  custom  has 
been  held  good  ;(sj  and  so,  although   the   inhabitants  be  not  ten-  -. 

ants  ;(/)  *and  a  house  newly  erected  within  the  manor  has  been  held  L  J 
subject  to  the  custom  ;(i;)  and  excessive  toll  or  neglect  to  grind  the  corn 
when  sent  were  held  to  be  the  only  excuses  for  not  employing  the  miller  ;(?/) 
and  the  custom  is  not  confined  to  corn  growing  in  the  manor,  but  has,  after 
much  discussion,  been  held  to  extend  to  all  ground  corn  wherever  it  might 
grow,  and  consequently  to  the  use  of  American  flour  ;(a?)  but  where  there  is 
neither  tenure  nor  prescription  an  exclusive  claim  of  this  kind  cannot  be 
maintained, (»/)  unless  by  force  of  prerogative. (^)  See  further  as  to  Title, 
and  also  Injuries  to  Things  Real. 

Mills  when  attached  to  the  freehold  are  corporeal  hereditaments, (o)  and 
ejectment  will  lie  for  them,  whether  they  are  corn-mills  or  water-mills  ;(i) 
and  there  may  be  a  copyhold  of  a  mill  ;(c)  and  a  mill  is  rateable  as  real  pro- 
perty, and  will  confer  a  settlement. (J)(l) 

Tithes  are  due  for  a  mill  ancient  or  new,  and  it  was  formerly  held  that 
the  tenth  toll  dish  was  due  of  common  right  ;(e)  but  it  is  now  settled  that  the 
tithes  of  a  mill  are  personalty,  and  the  tenth  part  of  the  profits,  after  deduct- 
ing the  charges  of  erecting  the  mill,  &c.,  belong  to  the  parson. (/)  See 
further,  post,  §  148. 

(o)  2  Bulstr.  184  ;  1  Roll.  Abr.  655  ;  Gibs.  662. 

(r)  F.  N.  B.  122;  2  Inst.  621. 

(s)  Hix  V.  Gardiner,  2  Bulstr.  195  ;  S,  C,  nom.  Higjres  v.  Gardener,  1  Roll.  Abr.  559  ; 
Green  v.  Robinson,  Hardr.  174  ;  Coryton  v.  Lithebye,  2  Saund.  114  ;  S.  C,  2  Lev.  27  ;  1 
Ventr.  167  ;  2  Keb.  631.  803,  &c. ;  Chapman  v.  Flcxman,  2  Ventr.  286. 

(t)  Drake  v.  Wylcsworth,  Willcs,  654.  (u)  Scintlcy  v.  Bcndel,  Hardr.  177. 

(x)  Cort  V.  Birkbeck,  1  Dougl.  218  ;  Case  of  Manchester  Mills,  cited  Id.  221.  Sec  also 
8  Brown.  P.  C,  106 ;  4  :\Iadd.  114;  also,  Norfolk  (Duke)  v.  Myers,  4  Madd.  83. 

(y)  Seintley  v.  Bcndel,  sup.  (z)  F.  N.  B.,  by  Hale,  122,  n.  (C.) 

(«)  Steward  v.  Lonibe,  4  J.  B.  :Moore,  288,  289. 

(6)  Fitzgerald  v.  Marshall,  1  Mod.  90.     See  also  3  Ridgw.  319. 

(c)  Ward's  case,  4  Leon.  241.  (rf)  R.  v.  Ottley  (Inhabs.)  1  B.  &  Ad.  161. 

(e)  Gumley  v.  Falkingham,  1  Show.  281  ;  Hall  v.  .Macket,  3  Anstr.  915. 

(/)  Newte  V.  Chamberlain,  1  B.  P.  C.  157. 


(1)  Ante,  16,  n.  1 ;  and  the  water  power  passes  as  appurtenant.    Pickering  v.  Stapler,  5 
S.  &R.107. 


7-t  ckabb's    law    of    real   property. 

[*^S4]  *SECTIOX  VT. 

COMMOXS  AXD  WASTE  LAXI>S. 

§  94  Distinction   bettreea  Commoas  and  j  §  95.  Ap}»rowinent. 

Waste  Lauds.  I  Riglits  as  to  Fenc«>s. 

What  Iiitere^  therein  ratcaWe,  |  Liahiliiies  to  rfjair  Fences. 

Cattie-gatts.  To  prvserrv  Boundarit*. 

Distuihauw.  I  Coujinissioncis  to  ascertain  Bounda. 

9d.  Eucioachments.  !  rios. 


94.  Coramons(l)  or  common  fields,  as  the  name  impoTts,  are  pieces  of 
irround  in  which  indiriduals  have  a  joint  and  several  pnjpeity,  and  are  dis- 
tinjruished  from  wastes,  or  waste  lands,  which  are  such  parts  of  a  manor  as 
the  lonl  orijrinallY  left  waste  or  uncultivated  for  the  ccnnmon  use  and  benefit 
of  himself  and  his  tenants  with  his  license,  whence  arose  Uie  incorporeal 
hereditaments  known  by  the  name  of  "  right  of  common,'^*  as  to  which  se« 
poet,  §  267,  and  as  to  the  rights  of  the  lonl  and  tlie  tenant  see  post,  Copv- 
BOLDS,  §  845. 

Land  over  which  there  is  a  right  of  coiamon,  and  which  affords  a  bene- 
ficial occujiatlon,  is  rateable,  but  the  occupier  must  have  sucii  a  possession 
as  will  enable  him  to  maintain  trespass,  which  a  mere  commoner  cannot 
do.(^)  Most  usually  the  ownersliip  of  the  soil  is  in  the  lord  of  the  manor 
where  it  is  situate,  but  there  are  many  cases  whew  there  is  a  joint  and 
several  property  in  fields,  cal;ed  ou  that  account  "comtnon  fields,"  which 
are  used  for  their  common  benefit.  In  that  case  each  party  is  in  possession 
of  a  distinct  interest  for  which  he  may  maintain  ejectment,  and  consequently 
is  rateable.(A)    So,  a  cattie-gale  or  a  right  of  pasture  within  any  field  held  by 

^jj^.  -,  several  in  common  is  a  tenement,  which  *was  held  to  pass  by  lease 
C  ^"^  -i  and  release,  now  by  release  only,(i*)  and  could  not  be  devised  but 
acconling  to  the  Statute  of  Frauds.(t)  So,  ejectment  may  be  maintained 
for  it.(/)  Caltle^ies  are  recognised  in  the  Game  Act,  1  &  2  Will.  4,  c.  32, 
s.  10/f/j) 

A\"hore  any  peison  makes  use  of  a  common  to  the  injury  of  the  commoner, 
this  is  called  a  disturbance,  for  which  the  party  has  his  remedy.(ii) 

05.  li  any  person  build  upcn  or  inciase  c  "?  or  waste  land  without 

the  hcense  oi  the  lord,  this  as  against  a  subji: ..  ..-  rmed  an  encroachment, 
but  as  against  the  Crown  a  purpresture  or  encroachment.  If  however  an 
indosure  has  existed  with  the  knowledge  of  the  lord  of  the  manor  or  of  his 
stewanl  for  some  time,  notice  must  be  given  to  the  party  to  ilirow  it  up,  be- 
fore ejectment  can  be  brought  against  the  tenant  as  a  trespasser  :(o)  but  it  has 
been  a  vtxatio  qv^stiCt  whether  a  lessee  who  encroaches  cmq  the  waste  can 

(r)  R.  V.  Wats«[\,  5  E^st,  4S0 ;  Sv  C.  3  &mth,  4o, 
(i)  K.  V.  Towksbvirv,  13  East,  loci. 

(j>  4  &  5  Viet,  c  ^i  ;  Dig.  F.  iiL  tit.  Leases;  K.  v.  T^kslcr,  1  Piirr.  Jvtt.  Ca.  315  ;  S. 
C  Bott.  at!*.  it)  R.  T.  Whiiky,  1  T.  R.  137. 

{1}  R.  v.  Tewksbiinr.  s«!v  (m)  See  Di|r.  F.  iii.  tit-  Game. 

(a)  Sw  poet,  §  353V*  «ff.  (•)  Doe  v.  Wilson,  11  Eas«,  56. 

(1)  Tnistees  v.  Robinson,  13  ?.  &  R.  33.    Worcester  v,  Gicen,  2  Pick.  435. 


COMMONS     AND    WASTE     LANDS.  75 

acquire  a  possessory  right  after  an  uninterrupted  possession,  or  uheiher  he 
shall  not  be  supposed  to  have  enclosed  for  the  benefit  of  the  lessor  after  the 
term  ;{]))  prima  facie  every  inclosure  made  by  a  tenant  adjoining  the  de- 
mised premises  is  presumed  to  be  made  by  him  for  the  benefit  of  the  land- 
lord ;  but  this  presumption  may  be  rebutted  by  evidence. (7)  See  further 
post,  as  to  title  gained  by  encroachment,  Title  to  Things  Real. 

A  clause  is  usuUy  inserted  in  Inclosure  Acts,  that  no  encroachment  in  a 
waste  which  has  existed  twenty  years  before  the  passing  of  the  Act  shall  be 
considered  as  a  part  of  the  waste,  and  no  title  derived  by  virtue  of  such  en- 
croachment *shall  bo  disputed.  A  similar  clause  is  to  be  found  in  ^  -. 
the  G  &  7  W.  4,  1 15,  for  inclosing  common  and  arable  fields, (r)  and  L  -1 

so  likewise  in  10  G.  4,  c.  50,  which  conlains  several  provisions  as  to  unlaw- 
ful inclosure.  (a) 

The  lord's  right  to  approve  as  against  the  commoner  is  recognised  by  the 
20  H.  3,  c.  4  ;  13  E.  1,  c.  46,  and  3  &  4  E.  6,  c.  3,(/)  and  by  subsequent 
acts  as  the  13  G.  3,  c.  38  ;  41  G.  3,  c.  109,  the  General  Inclosure  Act,  and 
other  Acts,  lords  and  tenants  are  empowered  to  enclose  commons  under 
certain  regulations  ;[ic)  also  as  to  exchanges  of  lands  lying  in  common  fields 
4  &  5  W.  4,  c.  SO.{x)  An  inclosure  has  the  efiect  of  changing  the  tenure 
of  lands  by  converting  copyhold  into  freehold  unless  the  contrary  be  expressly 
provided  for,(/y)  and  the  legal  freehold  does  not  vest  in  the  aliotlee  until  the 
execution  and  proclamation  of  the  award. (z') 

With  the  subject  of  inclosure  is  connected  that  offences  ;  whatever  serves 
to  part  fields  one  from  another  is  a  fence  ;  and  it  may  be  either  a  hedge,  a 
ditch,  a  bank,  wall,  gate,  &c, ;  for  a  ditch  may  be  a  legal  fence  if  it  serve  the 
purpose  of  a  fence. («)  Where  two  adjacent  fields  are  separated  by  a  hedge 
and  ditch,  the  hedge  pri7n(i  facie  belongs  to  the  field  where  the  ditch  is  not; 
if  there  are  two  ditches,  one  on  each  side  the  hedge,  then  the  ownership  of 
the  heJge  must  be  ascertained  by  proving  acts  of  ownership. (i)  For  a  per- 
son making  a  ditch  usually  cuts  to  the  extremity  of  his  land  ;(A)  and  where 
lands  abutting  on  a  ditch,  and  a  lane  on  each  side,  belong  to  dillerent  owners, 
the  presumption  is  that  the  hedge  and  ditch  on  either  side  belong  to  the  owner 
or  occupier  of  the  land  on  that  side  ;(t')  and  if  a  man  makes  a  bank,  it  as  well 
as  the  ditch,  will,  it  is  presumed,  be  made  on  his  *own  ground,  and  ^^^  , 
therefore  the  land  which  constitutes  the  ditch  is  in  point  of  law  a  part  L  J 

of  the  close,  though  it  be  on  the  outside  of  the  bank  ;((Z)  for  although  a  party 
is  supposed  to  dig  the  ditch  at  the  extreme  point  of  the  land,  yet  he  may  not 
dig  so  near,  as  to  cause  his  neighbour's  land  to  fall  in.(e) 

A  tenant  is  bound  to  repair  the  fences,  and  a  landlord  may  maintain  an 
action  against  him  for  not  so  doing,  upon  the  ground  of  the  injury  done  to 

(p)  Ci-each  v.  Wilmot,  2  Tr.unt.  160,  n.  Sec  also  Doc  v.  Mulliucr,  1  Esp.  460  ;  Doe 
V.  bavics,  Id.  IGl  ;  Bryan  v.  Wiiuvood,  1  Taunt.  208  ;  and  Adams  on  Eject.  51,  3id  ed.  ; 
VVoolr.  on  Comni.  3:)0. 

(7)  Doc  V.  VVilliiHus,  7  C.  &,  r.  332  ;  Doc  v.  Murrcll,  8  C.  &  P.  134. 

(r)  See  Dig.  P.  i.  Inclosure.  (s)  Id.  tit.  Land  Revenue  of  the  Crown. 

(/)  Sec  Dig.  P.  1.  tit.  Approvcnunt,  Commons. 

(//)  Id.  P.  i.  ii.  ill.  tit.  Commons,  Inclosure.         (x)  Id.,  P.  i.  lit.  Exchange. 

(y)  Novill  V.  Joddrcll,  2  T.  R.  41.5. 

(s)  Farrer  v.  Hillin<r,  2  15.  &  A.  271.  («)  Ellis  v.  Arnison,  1  B.  &.  C.  76. 

(/<)  Vowles  V.  Mill.T,  3  Taunt.  138,  (r)  No^ro  v.  Reed,  1  Mann.  &  Ry.  6.1. 

Id)  Doc  V.  Pcarsey,  7  13.  <Sc  C.  307-  (c)  Wyatt  v.  Harrison,  3  U.  &.  Ad.  e7. 


76  crabb's    law    of   real   property. 

his  inheritance  ;(/)  and  it  is  no  excuse  that  the  plaintiff  did  not  set  out  pro- 
per wood  for  repairs,  if  the  defendant  do  not  shew  that  a  request  was  made 
to  the  plaintiff,  or  a  custom.of  the  country  in  this  respect. (^)(1)  So,  a  tenant 
is  bound  to  preserve  the  boundaries  of  the  lands  held  by  him,  and  if  he 
permit  them  to  be  destroyed,  so  that  the  lands  cannot  be  distinguished,  he 
will  be  compelled  to  give  others  of  equal  value,  the  same  to  be  ascertained 
by  a  commission  issuing  out  of  the  Court  of  Chancery ,(/?)  and  the  same 
applies  to  cases  where  there  are  several  co-lessees,  (i)  See  further  as  to  waste, 
post,  Injuries  to  Things  Real.  The  Building  Act  contains  several  pro- 
visions as  to  party-walls. (it)  The  Malicious  Injuries  Act  imposes  a  penalty 
of  5/.  on  any  person  destroying  any  fence,  wall,  gate  or  stile,  and  makes  a 
second  offence  punishable  with  twelve  calendar  months'  inprisonment  and 
hard  labour.(/)     As  to  sea-walls  and  the  banks  of  rivers  see  infra,  §  107. 

By  the  General  Inclosure  Act  the  corauiissioners  are  required  to  ascertain 
the  boundaries  of  waste  and  common  lands  that  are  to  be  enclosed,  and  the 
2  &  3  W.  4,c.  80,  contains  various  provisions  authorizing  archbishops,  bish- 
*oQ  -1  ops  and  other  ecclesiastical  persons  to  ascertain  the  boundaries  *of 
L  -J  church  property,  where  they  are  unknown  or  disputed.  In  other 
cases  the  courts  of  equity  have  from  an  early  period  afforded  relief  either  by 
directing  an  issue,  or  granting  a  commission,  as  the  justice  of  the  case  required, 
the  granting  such  commissions  being  a  very  ancient  branch  of  equitable  juris- 
diction(m)  in  cases  where  there  exists  no  remedy  by  distress  ;(n)  so,  where 
there  has  been  an  intermixture  of  boundaries  occasioned  by  unity  of  posses- 
sion ;(o)  so,  where  charity  lands  have  been  let  at  a  great  undervalue,  and  are 
intermixed  with  other  land  belonging  to  the  tenant,  the  Court  will  grant  a  com- 
mission.(ja)  But  the  issuing  of  such  commissions  is  not  a  matter  of  course  ; 
it  will  be  granted  upon  weighty  grounds  only  ;((/)  the  Court,  therefore,  will 
not  grant  a  commission  if  defendant  denies  he  has  any  of  plaintiff's  lands  in 
his  possession,  for  that  would  be  to  admit  plaintiff's  title  in  general ;  but  if 
defendant  has  admitted  plaintiff's  title,  and  the  dispute  is  about  the  particu- 
lar lands,  then  a  commission  is  proper.(r)  The  plaintiff  must  establish  by 
evidence  or  the  admission  of  the  defendant  his  right  to  some  land  before  a 
commission  will  be  granted  ;(s)  so,  the  plaintiff  must  make  out  that  he  has 
some  equitable  ground  upon  which  to  call  for  the  assistance  of  this  court ;(/) 

(  f)  Cheetham  v.  Hampson,  4  T.  R.  319.  (e)  Whitfield  v.  Wcedon,  9  Chitt.  485. 

(A)  Att.-Gen.  v.  Fullerton,  2  V.  &.  B.  263.  (i)  Willis  v.  Parkinson,  1  Swanst.  49. 

(t)  See  Diff.  P.  ii.  tit.  Building.  (/)  See  Dig.  P.  I.  Malicious  Injuries. 

(m)  Mullincaux  v.  ^Mullincaux,  Totli.  101  ;  Pickering  v.  Kenipton,  lb. ;  Windsor  (Dean) 
T.  Kinnerslej,  Id.  126  ;  Spycr  v.  Spyer,  Xels.  14  ;  Botcler  v.  Spclman,  Finch,  96  ;  Wintle 
V.  Carpenter,  Id.  162  ;  Glyn  v.  Scawen,  Id.  239. 

(n)  Leeds  (Duke)  v.  Powel,  1  Ves.  172. 

(o)  Willis  V.  Parkinson,  2  Mcr.  507  ;  S.  C.  1  Swanst.  9. 

Ip)  Reresby  v.  Farrcr,  2  Vcrn.  414.  (7)   Davenport  v.  Bromley,  Fincli,  17. 

(r)  Ely  (By.)  v.  Kcnrick,  Bunb.  322. 

(s)  Chapman  v.  Spencer,  2  Eq.  Ca.  Abr.  163,  pi.  1 ;  S.  P.  Godfrey  v.  Littel,  1  R.  &  iMy. 

56. 

(<)  lb.,  recognising  Wake  v.  Conyers,  1  Eden,  Ca.tcmp.  Lord  Noltiiigham,  331  ;  Speor 
v.  Crawter,  2  Mcr.  410.  See  also  Leeds  v.  New  Radnor  Corporation,  2  B.  C.  C.  518 ;  Rouse 
V.  Barker,  3  B.  P.  C.  180. 


(1)  Where  the  lease  is  silent,  tenant  is  bound  to  make  ordinary,  not  permanent  repairs. 
Long  V.  Fitzsimmons,  1  W.  &  S.  530. 


W  0  0  D  S     A  N  D     T  R  E  E  S.  77 

SO,  the  bill  must  clearly  shew  that  without  the  assistance  of  the  court,  the 
boundaries  cannot  be  ascertained  ;[u)  and  such  commission  does  not  usually 
lie  to  settle  *the  boundaries  of  parishes,  that  being  a  mere  question  ^  ^^^^  -. 
of  law  ;(a;)  and  a  bill  to  ascertain  the  boundaries  of  two  manors,  has  '■  -^ 

been  dismissed,  because  there  was  no  dispute  about  the  soil  ;(y)  and  a  com- 
mission to  ascertain  the  boundaries  of  a  manor  or  parish,  ought  not  to  be 
granted,  unless  all  the  parties  who  have  a  profitable  interest  are  before  the 
Court,  (z)     And  this  rule  has  also  been  followed  in  other  cases. (a) 


SECTION  VII. 


"WOOD  AND  TREES. 


§  96.  Freeholds.  '  |  §  96.  Property  in  Trees. 

96.  Stealing-  Trees,  &.c. 


§  96.  As  to  what  land  passes  under  the  name  of  woods  or  trees  see  ante, 
§  87.  A  freehold  it  seems  may  be  had  in  trees,  although  the  owner  has  not 
the  freehold  of  the  soil. (6) 

As  between  landlord  and  tenant,  trees  are  a  part  of  the  inheritance,  see 
ante,  §  25  ;  and  a  wood  growing  in  the  glebe  or  in  the  churchyard  cannot  be 
felled  by  the  incumbent  except  under  certain  circumstances. (c)  As  to  what 
trees  are  timber  see  ante,  §  26. 

As  to  the  properly  in  trees  growing  upon  the  limits  of  two  adjoining  lands 
the  law  is  not  at  present  clearly  defined.  If  a  tree  grow  near  the  confines 
of  the  land  of  two  parties,  it  was  held  that  it  belonged  to  the  party  by  whom 
it  was  first  planted,  although  some  of  the  roots  extended  into  *the  pj^q^-i 
soil  of  the  other  part)',  yet  he  would  not  be  justified  in  cutting  the  L  -' 
roots,  for  the  body  of  the  tree  being  in  the  planter's  own  ground,  the  residue 
of  the  tree  belonged  to  him.((/)  It  has  however  been  said,  that  if  A.  plant  a 
tree  upon  the  extreme  limits  of  his  land,  and  the  tree  extends  its  roots  into 
the  land  of  B.,  next  adjoining,  A.  and  B.  are  tenants  in  common  of  this  tree  ; 
but  if  all  the  roots  grow  into  the  land  of  A.,  though  the  boughs  overshadow 
the  land  of  B.,  yet  the  branches  follow  the  root,  and  the  property  of  the 
whole  is  in  A.(e)  If  however  a  tree  grows  in  a  hedge  that  divides  the  lands 
of  A.  and  B.,  and  by  its  roots  takes  nourishment  in  the  lands  of  both,  they 
are  tenants  in  common. (/)  But  independently  of  the  question  of  property, 
a  man  may  be  liable  to  an  action  if  he  sufTer  the  branches  of  his  tree  to  over- 
hang the  lands  of  another  so  as  to  deprive  the  latter  of  air  or  hght,(g')  on  the 

(«)  Miller  v.  Warmington,  1  Jac.  &  W.  491. 

Ix)  St.  Luke's  V.  St.  Leonard's,  1  B.  C.  C.  4L  (y)  Wake  v.  Conyers,  sup. 

(z)  Atkins  v.  Hatton,  2  Anstr.  386. 

(a)  Miller  v.  Warmington,  sup. ;  Raley  v.  Best,  1  R.  &  My.  659  ;  but  see  Wills  v.  Sladc, 
6  Vcs.  498;  Baring  v.  Nash,  1  V.  &  B.  551. 

(b)  Stanley  v.  White,  14  East,  332.  (c)  See  §  91,  92. 
{d)  Masters  v.  Pollie,  2  Roll.  141. 

{(•)  Waterman  v.  Soper,  1  Lord  Raym.  737  ;  but  the  former  of  these  decisions  has  been 
preferred  in  a  subsequent  case,  Holder  v.  Coates,  M.  «fc  M.  112. 

(/)  Anon.  2  RoU.  255.  {g)  Norris  v.  Baker,  1  Roll.  Rep.  394 


78         crabb's  law  of  real  property. 

general  principle  that  the  owner  of  the  land  is  entitled  to  whatever  is  per- 
pendicularly situated  above  or  beneath  its  surface  ;(/i)  unless  he  have  any 
claim  to  an  easement. («)  As  to  the  interest  in  trees,  as  between  lord  and 
copyholder  see  post,  §  849,  also  post,  tit.  Estates  and  Waste.  As  to  the 
property  in  trees  growing  in  the  highways  see  post,  §  102. 

The  Larceny  Act  makes  the  stealing  of  any  tree,  sapling,  shrub,  or  under- 
wood punishable  with  a  fine  of  £5  or  under  for  the  first  offence,  twelve 
months'  imprisonment  for  the  second  offence  ;  and  a  third  offence  is  made 
felony  punishable  as  simple  larceny.(A:)  The  Malicious  Injuries  Act  con- 
tains similar  provisions  as  to  injuries  done  to  trees ;(/)  as  to  the  inclosing 

«Qi  1  ^^'oods  in  forests  see  22  E.  4,  c.  7,  and  *the  preservation  of  woods 
1^  J  35  H.  8,  c.  17  ;  and  13  El,  c.  25.  See  Dig.  P.  i.,  tit.  Woods  ;  as 
to  planting  trees  in  inclosures,  lb.  tit.  Commons  ;  as  to  the  duty  on  timber 
and  lading  the  decks  of  vessels  with  timber,  lb.  tit.  Timber. 


SECTION  VIII. 

FORESTS  AND  CHASES,  ETC. 


§  97.  There  are  certain  privileged  places,  as  forests,  chases,  parks,  and 
warrens  fitted  for  the  preservation  of  animals  ferae  naturse,  the  property  in 
which  is  as  long  only  as  they  remain  in  the  custom  and  power  of  the  owner. 
The  forest  which  is  the  most  ancient  of  these  and  belongs  solely  to  the 
Crown,  was  originally  governed  by  laws  peculiar  to  itself,  but  is  now  under 
the  management  of  her  Majesty's  commissioners  of  woods  and  forests. (//?) 
A  chase  is  in  the  hands  of  a  subject  a  privileged  place  for  beasts  of  the 
forest. (n)  A  park  is  an  inclosed  place  privileged  for  the  keeping  of  wild 
beasts,  which  could  not  formerly  be  made  without  her  Majesty's  license  or 
at  least  immemorial  prescription. (o)  A  free  warren  is  a  place  privileged  by 
prescription  or  by  her  Majesty's  grant  for  the  preservation  of  beasts  or  fowls 
of  warren,  as  hares,  conies,  partridges,  pheasants  ;(;))  but  a  grant  by  her 
Majesty  of  free  warren,  in  lands  of  which  her  Majesty  is  seised  in  fee,  is 
only  a  grant  of  free  warren  in  gross,  and  will  not  pass  by  the  grant  of  a 
manor  and  all  free  warrens  thereto  appertaining.(9)  See  further  as  to  the 
distinction  between  these  places  and  their  respective  privileges.  Dig.  P.  iii., 

0.Q9  -|  tit.  Game.  Modern  *places  known  by  the  name  of  parks  are,  together 
L  -^  with  the  deer  kept,  the  subject  of  some  special  provisions  in  the 
Larcency  and  Malicious  Injuries  Act.(r) 

(A)  2  Comm.  16  ;  Fcarnc's  Post.  Works,  8;  and  see  Palm.  536. 

(i)  See  post,  as  to  Easements,  §  356.  (A)  See  Dig.  P.  i.,  tit.  Larceny,  (Trees). 

(JL)  Id.,  tit.  Malicious  Injuries. 

(m)  See  Difj.  P.  i.,  tit.  Land  Revenue  of  the  Crown,  P.  ii.,  tit.  Game. 

(n)  4  Inst.  314.  (o)  2  Inst.  199  ;  Davies  v.  Powell,  Willes,  46. 

(  p)  Manw.  44  ;  1  Inst.  233, 

(9)  Morris  v.  Dimes,  1  Ad.  &  Ell.  6.54;  S.  C,  3  NcV.  &.  Man.  671. 

(r)  See  Dig.  P,  i.,  Larceny,  Malicious  Injuries, 


PRO  PE  RT  Y     IN    MIN  ES.  79 

SECTION  IX. 

MIXES  AND  MINERALS. 

I.  ^JiopcitB  fii  i^Tincs. 


§98.  Partoftlie  Freehold. 

Osvnersliip  of  tlie  Surface  and  of  the 

Mines. 
Property  in  Minerals. 


§  98.  Property  in  Highways, 

under  Inclosure  Acts. 
Right  to  Dower  in  Mines. 
Royal  Mines. 


II.  €5tant  of  iUfiics  or  i^Hiucrals. 


99.  What  passes. 

What  a  license  only. 
100.  Tenant  for  hue. 


100.  Lord  and  Copyholder. 
Iiandlord  and  Tenant. 
Patron  and  Incumbent. 


III.  3tiiQt)t  to  toorft  cr  open  ilifncs. 
100.  Right  under  License  or  Lease. 
IV.  aAatfabUiti)  of  faints. 

101.  Coal  Mines  only  rateable.  ]      101.  Exceptions. 

101.  Titheable. 


Un'der  this  head  may  be  considered  :  1.  The  properly  in  mines  :  2.  Grant 
of  mines  ;  3.  Right  to  work  or  open  mines  ;  4.  RateabiHty,  &c.  of  mines. 


I.  i^ro^tcrtg  in  £UincB, 

98.  INIines  are  a  part  of  the  freehold,  and  prima  facie  the  owner  of  the 
freehold  has  a  right  to  the  mines  and  minerals  underneath ;(s)  but  this  is 
only  a  presumption  of  *law  which  may  be  rebutted  by  showing  a      ^g„  -. 
distinct  title  to  the  surface  and  to  that  which  is  underneath  ;(f)  for  L 
mines  may  form  a  distinct  possession  and  different  inheritances. (?') 

To  establish  an  adverse  claim  to  the  minerals  against  the  owner  of  the 
surface  the  clearest  evidence  is  necessary,  therefore,  where  the  lord  proved 
a  uniform  exercise  of  enjoyment  of  his  right  to  the  minerals,  it  was  held  to 
prevail ;(?/)( 1)  and  it  was  sufficient  for  him  to  show  that  the  right  had  been 
exercised,  if  not  in  the  particular  lands  in  question,  yet  in  lands  similarly  cir- 
cumstanced ;(j/)  but  it  is  necessary,  however,  for  the  claimant  to  shew  that 
the  right  has  been  exercised  over  the  minerals  in  question  ;  shewing  acts  of 
ownership  as  lord,  by  shooting,  taking  estrays  and  the  like  is  not  sufficient  to 
establish  the  right  to  the  minerals  •,{z)  so  leases  of  minerals  in  other  parts 
of  the  waste  will  not  be  admitted  in  evidence, (2) 

(s)  1  Inst.  4,  b;  2  Com.  18. 

(0  Curtis  V.  Daniel,  10  East,  273. 

(u)  CuUen  v.  Rich,  2  Str.  1142  ;  S.  C,  Bull.  N.  P.  102. 

(y)  Barnes  v.  :\Iawson,  1  M.  &  S.  84.  (s)  Tyrvvhit  v.  Wynne,  2  B.  &.  A.  5.i4. 


(1)  But  trover  cannot  be  maintained  bv  an  adverse  claimant  to  the  land.     Mather  ▼. 
Trinity,  3  S.  &  R.  509. 


80         crabb's  law  of  real  property. 

As  to  the  claim  of  the  owner  of  the  surface  to  minerals,  it  has  been  held, 
that  the  presumption,  that  the  right  to  the  minerals  accompanied  the  fee- 
simple  of  the  land,  might  be  rebutted  by  the  absence  of  enjoyment  by  the 
plaintiff,  and  the  user  of  persons  not  the  owners  of  the  soil  ;(«)  but  an  adverse 
possession  of  copper  mines  for  upwards  of  twenty  years  by  certain  tenants 
customary  as  well  as  freehold  was  held  sufficient  to  establish  their  right.(6) 

If  minerals  are  once  severed  from  the  inheritance,  they  are  personal  chat- 
tels which  go  to  the  person  next  entitled  to  the  inheritance. (c) 

Mines  in  the  highways  belong  to  the  owner  of  the  soil.(fZ) 

In  the  case  of  inclosure  it  appears,  that  if  minerals  are  not  mentioned  in 
-.  the  Act,  the  several  owners  will  be  ^interested  in  them  according  to 
[  *94  J  ^^^  nature  of  the  tenure,  but  mines  will  not  be  reserved  to  the  lord 
under  the  ordinary  clause  "  saving  all  royalties"  ;(e)  so,  although  allotments 
under  such  Acts  usually  carry  the  soil  with  them,  yet  if  a  party's  right  to 
the  mines  is  expressly  excepted  in  the  Act,  his  rights  and  liabilities  as  owner 
■will  remain  in  the  same  parish,  although  the  allotments  under  the  Act  are 
carried  into  other  parishes. (/) 

Do\ver  is  due  of  mines  wrought  during  the  coverture,  whether  by  the 
husband  or  by  lessees  for  years  •,{g)  so,  whether  the  mines  are  under  the 
husband's  own  land,  or  have  been  absolutely  granted  to  him  to  take  the 
whole  stratum  in  the  land  of  others  •,{g)  so,  if  land  assigned  for  dower  con- 
tain an  open  mine,  tenant  in  dower  may  work  it  for  her  own  benefit,(g-)  but 
she  is  not  entitled  to  unopened  mines. (g-)(l) 

Dower  may  be  assigned  of  mines  either  collectively  with  other  lands  or 
separately  of  themselves,  and  it  shall  be  assigned  by  metes  and  bounds  if 
practicable  ;  otherwise,  either  by  a  proportion  of  the  profits,  or  separate 
alternate  enjoyment  of  the  whole  for  certain  periods. (£r)(2)  An  assignment 
of  dower  by  deed,  with  livery  of  seisin,  was  held  to  be  a  good  assignment. (A) 
As  to  dower  generally,  see  post.  Estates  (Dower). 

Mines  which  contain  gold  and  silver  are  denominated  "royal  mines," 
because  they  belong  exclusively  to  the  Crown,  (z)  insomuch  that  although 
her  Majesty  grant  lands  with  all  mines  in  them,  royal  mines  will  not 
pass  ;'(/t)  and  by  force  of  the  prerogative  her  Majesty  may  come  upon  any 
man's  estate  and  search  for  mines. (/) 

-,      Before  the  1  W.  &  M.  c.  30,  and  the  5  &  6  W.  &  M.  *c.  6,  it 
t^         -J  was  held  that  if  there  was  any  gold  or  silver  in  the  baser  metals,  this 

(«)  Rowe  V.  Grenfel,  Ry.  &.  Mood.  396.  (,h)  Curtis  v.  Daniel,  sup. 

(c)  Winchester  (Bp.)  v.  Knight,  1  P.  Wms.  406.  (</)  See  post,  §  102, 

(e)  Townley  v.  Gibson,  2  T.  R.  701.  (/)  R.  v.  Pitt,  2  Nov.  &  Man.  363. 

Cff)  Stoiighton  V.  Leigli,  1  Taunt.  402.  (//)  Rowe  v.  Power,  2  N.  R.  1. 

(i)  2  Inst.  577.  (/f)  R.  v.  Nortlmmberland  (Earl),  Plowd.  310. 

(/)  lb.  But  see  Lyddall  v.  Weston,  2  Atlc.  20,  and  Seaman  v.  Vawdry,  16  Ves.  393. 


(1)  And  she  may  work  it  to  any  extent,  but  not  to  open  new  pits.  Cranch  v.  Goodyear, 
1  Rand.  258  ;  and  in  setting  out  the  dower,  tlie  condition  of  the  land  at  the  death  of  the 
husband  must  be  considered  ;  subsequent  openings  are  to  be  omitted  as  the  widow  could 
not  work  tliem  :  as  (o  these  slie  is  dowable  as  of  ordinary  land,  and  it  will  be  set  off  so  as 
not  to  interfere  with  the  mines.  Coatcs  v.  Ciiecver,  1  Cow.  460-74.  But  where  the  prac- 
tice had  always  been  to  quarry  by  sections  to  the  depth  of  ten  feet,  it  was  held  the  whole 
tract  must  be  considered  as  opened  for  the  purposes  of  entitling  tenant  in  dower  to  work  it. 
Billings  V.  Taylor,  10  Pick.  460. 

(2)  Coates  v.  Cheevcr,  1  Cow.  479. 


RIGHT     TO     WORK     OR     OPEN     MINES.  81 

constitutes  it  a  royal  mine  ;(»77)  but  see  the  provisions  which  set  this  ques- 
tion at  rest,  Dig.  P.  iii.  tit.  Mines. 


II.  ©rant  of  ^Hmcs  or  lilincrals. 

§  99.  A  grant  of  mines  to  take  the  whole  stratum  of  the  land  of  otliers  is 
the  grant  of  a  real  hereditament  in  fee-simple  ;('«)(!)  but  that  the  lands  may- 
pass  under  the  grant  of  the  minerals  it  is  necessary  that  there  should  be 
livery  of  seisin  ;(o)  otherwise  only  aliberty  to  dig  for  the  minerals  passes  ;(/;) 
and  the  owner  of  the  soil  is  in  that  case  not  excluded  from  digging  for  mine- 
rals, therefore,  when  a  mortgagor  and  mortgagee  in  fee  joined  in  con- 
veying land  to  a  purchaser,  who  by  the  same  instrument  covenanted  with 
the  mortgagor,  his  heirs  and  assigns,  that  it  should  be  lawful  for  them  to  dig 
for  coals  and  carry  them  away,  held  that  this  was  a  license  only  and  did  not 
exclude  the  purchaser  from  getting  coal  there  ;(*/)  so,  in  respect  of  the  mort- 
gagor it  could  not  operate  as  an  exception  or  reservation,  he  not  having  the 
legal  estate  in  him,  the  covenant  therefore  would  operate  only  as  a  grant, 
and  a  grant  would  not  pass  the  land  itself  without  livery  ;((/)  a  reservation  of 
this  kind  must  expressly  shew  that  it  was  the  intention  of  the  parties,  that 
the  mines  should  not  pass  in  the  conveyance  ;(''](2)  otherwise,  although  the 
grantor  may  have  the  legal  estate,  the  mines  may  be  granted  over,  and  a 
mere  license  to  dig  for  the  minerals  is  thus  only  reserved. (s)(3)  It  seems 
however  to  be  settled  that  to  a  grant  of  mines  is  *necessarily  inci- 
dent the  right  to  enter  and  work  them  without  any  express  authority 
for  that  purpose. 


[*96] 


III.  i\ifiltt  to  fcDDdt  or  open  fHCncs. 

§  100.  There  may  be  a  right  to  work  mines  either  under  a  license  or  a 
lease,  the  latter  of  which  is  the  most  usual  and  proper.  A  license  is  not  of 
the  same  force  as  a  lease  ;  for  the  latter  gives  an  actual  estate  in  the  land, 

(jii)  R.  V.  Northumberland  (Earl),  sup.  (n)  Stoughton  v.  Leigh,  1  Taunt.  402. 

(o)  1  Inst.  6,  a;  but  see  Transfer  of  Property  Act,  7  &.  8  V.  c.  76,  Free.  Conv.  Append. 
No.  XVIII. 

{  p)  Shep.  Touchst.  96.  («?)  Chctham  v.  Williamson,  4  East,  46.9. 

(r)  Cardigan  (Earl)  v.  Armitagc,  2  B.  &  C.  197. 

(s)  Huntingdon  (Earl)  v.  Mountjoje  (Ld.),  Godb.  17;  S.  C.  4  Leon.  147;  Anders. 
337  ;  Moor,  17. 


(1)  Grubb  V.  Guilford,  4  Watts,  223-46. 

(2)  Gibson  v.  Tyson,  5  W.  34,  where  it  seemed  to  be  considered  that  in  a  reservation 
the  scientific  meaning  of  the  word  minerals  would  not  be  given  to  it  ;  but  it  would  wifh- 
out  more,  include  merely  those  things  which  in  common  parlance  arc  considered  minerals. 

(3)  Tiie  right  to  the  soil  and  the  mines,  or  rightto  dig  ore  may  be  separated,  and  when 
they  are,  the  latter  will  not  be  included  in  a  reservation  of  a  right  to  dig  on  laud  tiiough  the 
land  out  of  which  it  is  reserved  is  included  within  the  general  description.  Shoenbcrger 
V.  Lyon,  7  W.  &  S.  184. 

July,  1846.— 6 


82  crabb's  law    of    real   property. 

but  the  former  gives  onlj^  a  right  to  the  minerals  as  personal  chattels,  when 
they  are  dug;(/)  so,  although  a  license  is  not  revocable  at  the  will  of  the 
grantor,  as  it  carries  an  interest  in  the  land,  yet  it  is  determinable  on  simple 
notice. (a?)  So  if  it  do  not  contain  clear  words  to  give  the  grantee  the  exclu- 
sive right  to  dig  for  minerals,  the  grantor  or  his  assigns  may  exercise  the 
right  in  common  with  him.(w) 

As  to  the  right  to  work  old  mines  or  open  new  ones  by  persons  in  other 
cases,  having  an  estate  less  than  a  freehold  of  inheritance,  that  depends  upon 
the  nature  of  the  estate. 

A  tenant  for  life  may  dig  for  gravel,  lime,  clay,  stone  and  similar  mine- 
rals for  the  purposes  of  repairing  the  buildings  or  manuring  the  land.(c) 
So,  of  such  mines  as  are  open,  he  may  dig  and  take  the  profits, («)  but  he 
may  not  open  new  mines. (^>)  Yet  a  tenant  for  life  of  coal  mines  may 
open  new  pits  or  shafts  for  the  working  old  veins  of  coals  ;(1)  it  being  hazar- 
dous to  grant  an  injunction  to  stay  the  working  of  a  coal  mine,  because  it 
may  ruin  the  colliery  forever.(c)  As  to  waste  by  tenant  for  life,  see  post, 
tit.  Waste. 

r  ^QO"  1  *^''  '^  "°^^  settled,  that  in  the  absence  of  special  custom  the  pro- 
L  -^  perly  in  minerals  is  vested  in  the  lord,  and  the  right  of  possession  in 
the  tenant ;  consequently  neither  party  can  do  any  act  to  profit  by  the  mines 
without  the  consent  of  the  other. (f/)  And  a  copyholder  shall  have  trespass 
against  the  lord  for  breaking  his  close  and  digging  his  coals  ;(e)  and  so  the 
action  is  maintainable  against  the  owner  of  an  adjoining  colliery  for  breaking 
and  entering  the  subsoil  of  a  copyholder,  and  taking  coals  therein,  although 
no  trespass  be  committed  on  the  surface, (y)  The  tenant,  however,  on  the 
other  hand  has  no  right  to  the  minerals, (§•)  and  if  he  work  the  mines  he 
commits  waste, (A)  unless  where  he  has  the  right  by  special  custom. (i)  (As 
to  the  right  of  lords  and  copyholders,  see  post.  Tenures,  §§  853  et  seq. ; 
waste  by  copyholders,  see  post.  Injuries  to  Things  Real.) 

As  between  landlord  and  tenant  it  appears  that  the  lessee  for  years  may 
work  mines  that  are  open,  for  they  are  the  annual  profit  of  the  land,  but  he 
cannot  make  new  mines,  for  that  would  be  waste  ;(/c)  but  if  a  man  has  mines 
hid  in  his  land,  and  leases  his  land  and  all  mines  therein,  the  lessee  may 
then  open  any  mine. (A;)  (As  to  waste  by  tenant  for  years,  see  post.  Injuries 
TO  Things  Real.) 

As  between  the  patron  and  the  parson,  it  appears  that  if  the  parson  open 


(/)  Die  V.  Wood,  2  B.  &  A.  739.  (t)  Robrrts  v.  Dn.vy,  4  B.  Sc  Ad.  G72. 

ly)  Chotliam  v.  Willianision,  sup. ;  Huntingdon,  (Earl)  v,  Moiuitjovo,  (Ld.),  sup. 
(«,   1  Inst.  53,  b. ;  Moylc  v.  Moylc,  Ow.  ti?  ;  S.  C;.,  2  Roll.  Abr.  81 G. 
(«)  Lord  Darcy  v.  Aslnvitli,  Hob.  296;  Saunders'  case,  5  Co.  12  ;  1  Inst.  54,  b;  Hull. 
19.     Sec  also  Viucr  v.  Vaughan,  2  Bcav.  446. 

(6)   ]  Inst,  54,  b  ;  Whitfield  v.  Bewit,  2  P.  Wms.  240. 

(c,  Clavcring  v.  Cluvcrinjr,  2  P.  Wrns.  388;  S.  C,  Sd.  Chan.  Cas.  79. 

(il)  Winchester  (Bp.'  v.  Knijrht,  1  P.  Wms.  406.         (e;  Player  v.  Roberts,  W.  Jo.  243. 

( /■)  Lewis  V.  Branthwaitc,  2  B.  &  Ad.  437.  (?)  Rowe  v.  Brenton,  8  B.  &  C.  737. 

(//)  Bourne  v  Taylor,  10  East,  189.  (i)  Curtis  v.  Daniel,  10  Ea.st,  273. 

(A-)  Saunders'  case,  5  Co.  12;  1  Inst.  84,  b. 


(1)  Crouch  V.  Purycar,  1  Rand.  260. 


WAYS. 


83 


a  mine  in  his  glebe,  this  will  not  be  waste,  for  otherwise  none  of  the  mines 
under  glebe  lands  would  be  opened. (/) 


IV.  2^alcalH'litJ>,  ^c.  of  ^tnrs. 

§  101.  Coal  mines  being  alone  mentioned  in  the  43  El.  c.  2,  it  has  been 
held  that  mines  of  other  minerals  are  not  *liable  to  be  rated  to  the  p  ^,q 
relief  of  the  poor,(?n)  and  by  the  5  &  6  W.  4,  c.  50,  s.  27,  also  not  l  J 
to  the  highway  rate  ;(;?)  to  this  however  there  are  some  exceptions,  for  stone 
quarries  are  not  exempt  ;(o)  so,  slate-quarries  ;(;j)  so,  clay-pits  ;(y)  so,  in 
Rowls  V.  Gell,(r)  a  lead  mine  was  held  to  be  rateable,  and  so  likewise  in  R. 
V.  St.  Agnes(s)  tin  mines  have  been  held  rateable. 

An  action  of  ejectment  is  maintainable  for  recovering  the  possession  of  a 
mine  ;(/)  but  it  seems  doubtful  whether  ejectment  will  lie  for  an  unopened 
mine  ;(.r)  so,  ejectment  cannot  be  brought  by  the  lord  of  a  manor  for  mines 
situate  in  the  lands  of  his  copyhold  tenant  in  the  absence  of  special  custom  ;(?/) 
so,  it  will  not  lie  in  respect  of  a  Hcense  only  to  work  mines. (z) 

Tithes  are  not  regularly  due  of  things  Avhich  are  of  the  substance  of  the 
earth  ;(o)  but  mines  or  minerals  may  be  titheable  by  custom. (i)  See  fur- 
ther post,  §  148  ;  see  also  further  post,  Injuriks  to  Things  Real  ;  and  as  to 
the  statutory  provisions  respecting  mines,  see  Dig.  P.  i.  and  iii.  tit.  Mines. 


^SECTION  X. 


WAYS. 


[*99] 


§  102.  DitFercnt  kinds. 


102.  What  a  Higlnvny. 
Hig-hway  foundcrous. 
Turnpike  IJoads. 
Property  in  the  Soil. 
Who  Owner  of  the  Soil. 
Trees  in  the  Highways. 
Mines  and   Minerals,  &c.  in  tlie 
Highways. 


§  102.  Repair  of  Highways. 
Bridges. 
Individuals  bound  to  repair. 

By  Prescription. 

By  Tenure. 

By  Inclosure. 


(J)  Countess  of  Rutland's  case,  1  Lev 
1  .Sid.  152. 

(;«)  See  Dig.  P.  iii.  tit.  Poor  (Rate). 
(0)  R.  V.  Allcsburv,  1  East,  534. 
iq)  R.  V.  Brown,  8  East.  523. 


107  ;  S.  C,  nom.  Rutland  v.  Greene,  1  Kcb.  557  ; 


(n)  lb.,  tit.  Iliglnvnys. 
ip)  R.  V.  Woodland,  "2  East,  161. 
(r)  Cowp.  451.  (s)  3  T.  R.  480. 

(0  Harebottle  v.  Placock,  Cro.  Jac.  21  ;  Comyn  v.  Kineto,  Id.  150  ;  Wild's  case.  Garth. 
277 ;  Cullen  v.  Rich,  Bull.  N.  P.  102. 

(x)  Sayer  v.  Pierse,  1  Vcs.  232.  (y)  Lewis  v.  Branthwnitc,  2  B.  &  Ad.  437. 

{z)  Doe  V.  Wood,  2  B.  &  A.  139.  («)  Graunt's  Case,  1 1  Co.  15. 

(i)  Burton  v.  Spencer,  2  Wood.  336. 


84  CR abb's   laav   of   real   property. 

II.  ^vf\jatc  Srnii^. 

§  103.  What  is  a  Private  Way.  1       103.  Private  Wars  becoming  Public, 

Right  of  Way.  j       103.  Dedication  of  Way  to  the  Public. 


§  102.  Ways  are  either  public  or  private,' and  these  again  arc  distin- 
guished, according  to  the  nses  to  which  they  are  apphed,  into  horseways, 
cartways,  and  footways.     See  further  Dig.  P.  iii.  tit.  Highways. 


I.  35ui3lic  Z^'nvn, 

Public  ways  are  either  common  ways  or  highAvays.  A  common  way  is 
such  as  leads  from  a  village  into  fields,  &c.  ;(c)  and  this  may  be  prescribed 
for.(rf) 

A  hicrhwav  is  a  way  to  a  market  or  a  great  road,  &c.,  common  to  all 
passengers,  or  more  properly  speaking  a  public  passage  for  the  Clueen  and 
all  her  subjects,  whence  called  by  distinction  the  "  Glueen's  highway." 
*inn~i  ^^  l^-'l^'^r  it  leads  to  *a  market-town  or  not  it  is  a  highway  if  com- 
L  J  mon  to  all  the  people  :(f)  so,  a  street  is  a  highway  ;(/)(!)  so,  a 
navigable  river  is  to  some  purposes  esteemed  a  highway  ;(o-)  so,  a  bridge  :(/j) 
so,  a  towing-path  ;(i)  so,  a  railway  ;(&)(2)  but  a  fiight  of  stairs  down  to  the 
Thames  is  not  necessarily  a  highway. (/) 

There  may  be  a  highway  although  it  may  be  circuitous  ;(7n)  and  even,  as 
it  seems,  although  there  be  no  thoroughfare. (/j) 

"When  a  highway  becomes  founderous  or  out  of  repair,  the  passengers 
may  go  on  the  adjoining  land,  even  over  sown  corn  ;(o)  and  such  ways, 
termed  outlets,  are  held  to  be  part  of  the  highway  ;(o)  but  in  order  to  make 
such  way  the  Queen's  highway,  it  M-as  formerly  necessary  to  have  a  writ  of 
ad  quod  d(im)n(tn,{p^  Avhich  is  now  very  rarely  required,  since  the  highways 
are  regulated  by  act  of  Parliament. 

Turnpike  roads  are  highways,  but  every  road  where  toll  is  taken  is  not 
necessarily  a  highwa}-,  for  the  law  recofrnises  "toll  thorough,"  and  "•  toll- 
traverse,"  the  former  of  which  is  toll  for  passing  over  the  private  soil  of 
anolher,((7)  and  the  latter  is  a  toll  for  passing  through  a  high  way.  (g)     Toll- 

(c)  R.  v.  Hornsey  (Inhabs.)  10  Mod.  159.         {d)  Chichester  v.  Lethbridge,  Willcs,  71. 

(e)  Ansfcn's  case,  1  Vent.  18;i. 

(  f)  R.  V.  Hammond,  10  .^lod.  382  :  S.  C,  1  Stra.  44. 

(tr)  Fitz.  Abr.  tit.  Challcnjare,  279,  cited  10  Mod.  382. 

(A)  R.  V.  Saintiff,  G  :\iod.  -253.  (i)  2  B.  &  A.  648. 

(A-)  R.  V.  Severn  Railway  Co.,  2  B.  &  A.  646 ;  Rowe  v.  Shil^on,  4  B.  &  Ad.  726. 

(l)  R.  V.  Limehouse.  2  Show.  455.     See  also  Driukwater  v.  Porter,  7  C.  &.  P.  181. 

(m)  R.  V.  Lloyd,  1  Camp.  iGl. 

(j-)  Rupby  Charity  v.  Merry  weather,  11  East,  375,  n.  But  see  Woodver  v.  Haddcn, 
5  Taunt.  138;  Wood  v.  Veal,  5  B.  &,  A.  454;  S.  C,  1  D.  &  R.  20,  where  that  decision  is 
questioned.  (")  Dancombc's  case,  1  Roll.  Abr.  390. 

(jy)  Cro.  Car.  OGG.  (7)  Blount,  Nom.  Verb.  Toll ;  1  Sid.  454, 


(1)  Case  of  the  Philadelphia  &  Trenton  Rail  Road  Co.,  G  Whart.  44. 
(2j  Bonaparte  v.  Camden,  1  Bald.  223. 


P  U  B  L  I  C     W  A  Y  S.  85 

traverse  cannot  be  demanded  without  consideration  ;(r)  toll-thorough  on  the 
other  hand  may  be  demanded  without  *any  consideration. («)  These  p*,^.,-! 
two  kinds  of  toll  and  also  toll-turn,  which  is  a  toll  on  beasts  returning  L  -• 
from  a  market,  a  man  have  on  his  own  ground  and  might  have  assize  for 
them.(?) 

The  property  in  the  soil  of  the  highway  is  in  the  owner  of  the  adjoining 
land, (a:)  who  may  maintain  trespass  for  digging  the  ground  of  the  high- 
way,(yj(lj  and  also  ejectment,  for  the  sherifl"  may  give  him  possession 
subject  to  the  easement. (z)(2)  To  him  also  belong  all  trees  upon  it,(3)  and 
all  mines  underneath, (a)  and  he  may  carry  water  under  it. (a)(4)  Hence  it 
has  been  said  that  cattle  should  be  driven  directly  along  the  highway,  and 
not  suflered  to  linger,  for  if  they  do  any  thing  but  pass  and  repass  it  is  a 
trespass, (6)  for  the  property  ia  the  soil  being  vested  in  the  owner,  a  lawful 
user  may  be  shewn. (c)  So,  it  has  been  held  that  trustees  of  a  turnpike 
road  have  not  the  soil  of  the  road  vested  in  them,  so  that  they  can  give 
consent  to  the  diverting  a  public  footpath  into  it,  without  a  special  clause  in 
the  statute  vesting  the  right  in  them,((/)(5)  although  by  the  3  G.  4,  c.  126, 
ss.  86  et  seq.,  they  are  authorized  to  sell  roads  become  useless,  reserving 
mines  and  minerals  to  the  owner. 

The  owner  of  the  soil  is  generally  understood  to  be  the  owner  of  the 
close  adjoining,  to  whom  the  highway  itself,  al medium fil um  vise,  belongs, 
and  consequently  the  presumption  prima  facie  is,  that  the  land  belongs  to 
the  owner  on  each  side  ;(e)  and  the  rule  is  the  same  whether  the  owner  be 
a  freeholder,  leaseholder,  or  copyholder  ;(/)  so  the  presumption  is  that  the 
strips  of  land  at  the  sides  of  the  road  'belong  to  such  owner,(o-)  but  p^irjo"! 
acts  of  ownership  on  the  part  of  the  lord  of  the  manor  may  be  L  J 
admitted  to  repel  such  presumption  ;(/i)  so,  if  the  narrow  slips  lie  contiguous 
to  or  communicate  with  open  commons,  the  presumption  in  favour  of  the 

(r)  R.  V.  Boston  (Corp.)  1  W.  Jo.  162  ;  Hasfort  v.  Wells,  1  Mod.  47  ;  S.  C,  nom.  Heshord 
V.  VVells,  1  Sid.  451;  London  (Corp.)  v.  Hunt,  3  Lev.  47;  Warrington  v.  Moselcv,  4  Mod. 
ai9  ;  Wilkes  v.  Kirby,  2  Lutw.  1519  ;  Yarmouth  (.Mayor)  v.  Eaton,  3  Burr.  1402.  Aiid 
see  Pclhain  (Ld.)  v.  Pickcrsjrill,  1  T.  R.  6G0  ;  Trucman  v.  Wal^liam,  2  Wils.  298. 

(s)  Crispe  v.  B'jlhvood,  3  Lev.  424  ;  Colton  v.  Smitii,  Cowp.  47. 

it)  Webb's  case,  8  Co.  45.  (x    2  E.  4,  9;  8  E.  4,  9  ;  8  IL  7,  9  ;  2  Inst.  705. 

(y)  8  E.  4,  9;  Goodtitle  v.  Alkcr,  1  Burr.  133. 

(i)  Lake  v.  Sliepherd,  2  .Stra.  1004.  (a)  Goodtille  v.  Alkcr,  sup. 

(b)  10  E.  4,  7  ;  Br.  Trespass,  pi.  321.  (c;  Doveston  v.  Payne,  2  H.  Bl.  531. 

Id)  Davison  v.  Gill,  1  East,  6J. 

(ei  Stevens  v.  Whistler,  11  East,  51 ;  Doe  v.  Peirsey,  7  B.  &  C.304  ;  S.  C,  9  D.  &  R. 
903 ;  S.  C,  5  D.  &  R.  273  ;  Cooke  v.  Green,  11  Price,  736. 

(jf )  Doe  v.  Pearsey,  sup.  (?  ■  Steel  v.  Pricket,  2  Stark.  463. 

(A)  Anon.,  Loffl,  358 ;  Doe  v.  Kemp,  7  Bing.  332 ;  S.  C,  5  M.  &.  S.  173. 


I 


(1)  Or  for  landing  passengers  from  a  ferry  over  a  navigable  stream,  on  the  terminus  of 
a  highway,  C:hcss  v.  Manown,  3  Watts,  219 ;  Peebles  v.  Kittle,  2  Johns.  363. 

{2,  Alder  v.  Murdock,  13  Mass.  256.  (3)  Chambers  v.  Furry,  1  YeaL  167. 

(4)  Pcrlcy  v.  Chandler,  6  Mass.  454. 

(5)  And  though  they  may  erect  a  toll  house  witliin  their  limits.  Ridge  v.  Stoever,  2  W. 
&  S.  5 IS,  yet  they  cannot  use  it  for  any  other  purpose  than  is  essential  to  the  use  of  the 
road,  Fisher  v.  Coyle,  3  Watts,  408  ;  and  on  tlie  abandon'n  -ntof  the  house  as  a  toll  house, 
it  becomes  a  public  uuisance,  aud  any  one  may  abate  it,  Phiiadelp!iia  Turnpike  v.  Rogers, 
2  Barr,  114. 


86  CRABB's    LAW     OF     REAL     PROPERTY. 

landowner  fails  or  is  much  narrowed  ;(i)  so,  where  such  strip  had  been 
commonly  reputed  waste. (A-) 

As  to  the  property  in  trees  growing  in  the  highway  the  old  text  writers 
appear  to  be  not  agreed,  some  contending  that  they  belong  to  the  lord  of  the 
manor,  and  others  to  the  freeholder. (/)  In  Brownlow,  42,  it  is  laid  down, 
.that  to  the  owner  of  the  soil  on  both  sides  of  the  way  of  common  right  belong 
the  trees  that  grow  in  the  lane,  whether  he  be  lord  or  freeholder,  although 
it  seems  that  the  question  will  turn  very  frequently  on  the  usage  of  taking 
the  profits  of  the  trees. (?n) 

By  the  7  &  8  G.  4,  c.  24,  s.  18,  minerals  under  the  road  are  made  by 
virtue  of  the  act  to  belong  to  the  original  proprietor  of  the  land,  who  shall 
have  the  liberty  of  working  the  same  in  such  manner  as  is  usual  for  carry- 
ing on  works  of  that  kind  ;  and  by  the  4  G.  4,  c.  95,  s.  75,  the  right  of 
pasturage  is  reserved  to  those  who  are  entitled  to  the  same  ;(n)  and  by  the 
General  Inclosure  Act  it  is  provided  that  the  grass  and  herbage  growing  on 
the  roads  that  are  set  out  shall  forever  belong  to  the  proprietor  of  the  lands 
adjoining  on  both  sides  the  way. 

It  is  settled,  that,  of  common  right,  the  parish,  where  the  highway  is, 
ought  to  repair. (o)(l)  And  no  agreement  whatever  with  any  person  can 
relieve  the  parish  from  this  common-law  liability  ;(/))  and  if  there  be  any 
one  who  is  bound  to  repair,  but  becomes  insolvent,  the  justices  may  cause 
-,  the  *deficiency  to  be  levied  on  the  rest  of  the  inhabitants ;((/)  so, 
L  -J  where  certain  inhabitants  of  a  township  w^ere  exempted  from  the 
repair  of  the  new  roads,  the  burthen  Avas  thrown  upon  the  rest  of  the 
parish  ;(r)  but  certain  districts  or  individuals  may  be  bound  to  repair,  as  a 
vill,(s)  or  a  hundred. (/)  So,  a  hamlet  may  be  charged  by  immemorial  pre- 
scription ;[x\  or  a  township  may  be  chargeable  by  prescription  for  the 
maintenance  of  all  ways  within  their  boundary  ;(y)  and  mere  usage  without 
the  averment  of  any  consideration  will  suffice  to  bind  such  districts  ;(r)  but 
it  seems  doubtful  whether  one  parish  may  be  bound  to  repair  a  way  within 
another  parish. (o) 

Bridges,  though  deemed  to  be  highways,  must  be  repaired  by  the 
county  ;(6)  and  by  the  22  H.  8,  c.  5,  s.  9,  the  county  is  bound  to  repair  the 
highvi^ay  at  the  ends  of  bridges  to  the  extent  of  three  hundred  yards  distance 
from  the  end,  which  seems  to  have  been  the  common  law,(c)  see  further  as 
10  bridges.  Dig.  P.  ii.  tit.  Bridges. 

Individuals  may  be  bound  to  repair  from  different  causes,  as  by  prescrip- 

(»■)  Grove  v.  West,  7  Taunt.  39.  Holt,  4G3.        (k)  Hcadlam  v.  Headloy,  Holt,  463. 
(I)  Kitch.  68  ;  Br.  Abr.  Leetc,pl.  3.  (m)  Pclham  v.  Wiatt,  TRoII.  Abr.  392. 

(n)  Sec  DiiT.  P.  iii.  tit.  Highways,  (o)  1  Vent.  90  ;  1  Ld.  Rayra.  725  ;  2  Mod.  403. 

>       (p)  1  Ventr.  90.  {g)  1  Ld.  Raym.  72.5. 

(r)  R.  V.  Sheffield  (Tnhabs.)  2  T.  R.  106.  (s)  27  Ass.  pi.  44,  (21.) 

(<1  R.  V.  Yarton  (Inhabs.)  1  Sid.  140.  (x)  Sty.  163. 

(y)  R.  v.  Ecclesfield  (Inhabs.,)  1  B.  &  A.  348;  R.  v.  Machynlleth,  2  B.  &  C.  166. 
(z)  R.  V.  Hatfleld  (Inhabs.,)  4  B.  &  A.  7.5. 

(a)  Anon.,  12  Mod.  409  ;  R.  v.  St.  Giles,  Cambridge  (Inhabs.,)  5  M.  &  S.  260. 
(Ij)  13  Co.  33. 

(c)  Br.  Abr.,  Presentment,  pi.  23  ;  2  Inst.  70.5.  See  also  R.  v.  Yorksliire  (W.  Rid.,)  7 
East,  588;  S.  C,  5  Taunt.  284;  S.  C,  in  error,  2  Dow.  1. 

(1)  Bat  the  charjre  of  repairing  a  road  cannot  be  throAvn  on  the  public  by  a  mere 
dedication,  Union  Canal  v.  Pinegrove,  6  W.  &  S.  563. 


P  R  I  V  A  T  E     W  A  Y  S.  87 

tiori,  tenure  or  incjosure.  A  part}'-  cannot  be  held  liable  by  prescription, 
unless  it  be  in  respect  of  some  consideration  as  the  taking  of  toll  or  other 
profit,  for  the  act  of  the  ancestor  cannot  charge  the  heir  without  profit  ;((/) 
but  a  corporation  may  be  bound  by  prescription  without  consideration  ;(c) 
but  the. occupier  is  bound  to  cleanse  the  dikes  and  ditches  adjoining  to  his 
land  without  *prescription,(g-)  and  this  part  of  the  common  law  is  r-*-,Q^-^ 
confirmed  by  the  statute. (A)  •- 

A  private  person  may  likewise  be  bound  by  reason  of  his  tenure  ;(i)  and 
so  his  alienee  ;{k)  and  if  the  lands  come  into  the  hands  of  the  Crown,  yet 
the  obligation  or  duty  continues, (/)  but  the  occupier  and  not  the  owner  is 
liable  ;(m)  and  if  the  owner  allow  his  land  to  lie  fresh,  he  will  not  be  excused 
from  re  pair,  (i) 

A  party  may  likewise  be  bound  to  repair  by  reason  of  an  inclosure  of  the 
land  on  either  side  of  the  highway,  for  by  this  means  he  deprives  the  public 
of  their  common-law  right  to  go  upon  the  adjacent  land  in  case  the  road  be 
founderous  and  out  of  repair.(n)  If  a  person  inclose  land  on  one  side,  the 
other  side  being  anciently  inclosed,  he  shall  be  compelled  to  repair  all  the 
way,  but  if  there  be  no  ancient  inclosure  he  will  be  obliged  to  repair  only 
half  the  way.(o)  If  the  party  neglect  to  repair,  the  passengers  may  make 
gaps  in  the  inclosure,  and  go  upon  the  land  to  avoid  the  bad  road,(/>)  and 
the  Court  in  one  case  ordered  an  inclosure  to  be  prostrated  until  the  road  was 
repaired  •,{q)  and  the  like  law  prevails  in  case  a  party  encroaches  on  a  high- 
way, for  he  is  bound  to  repair  it  until  the  encroachment  is  removed  ;(r)  but 
the  bare  removal  will  not  discharge  one  who  is  bound  to  repair  by  reason  of 
tenure,  because  in  that  case  he  is  always  bound. (r)  But  the  obligation  to 
repair  by  reason  of  inclosure  or  encroachment  extends  only  to  inclosures  made 
by  the  party,  not  to  those  made  by  the  act  of  the  law,  as  *under  an  p*jQ5-n 
inclosure  act.(6-)  As  to  the  making,  repairing,  and  managing  of  L 
highways  and  turnpike  roads,  see  Dig.  P.  ii.  tit.  Highway. 


103.  A  private  way  is  said  to  be  such  as  goes  to  a  church,  or  to  the  com- 
mon fields  of  a  town,  or  to  a  private  house,  or  to  a  particular  village  which 
terminated  there  ;  and  it  is  so  called  because  it  is  for  the  particular  benefit  of 
the  inhabitants  of  such  place  only,  and  not  for  all  the  queen's  subjects  ;  and 
the  right,  which  may  be  claimed  by  particular  persons  to  use  such  way,  is 
an  incorporeal  hereditament  known  by  the  name  of  a  7?/s"/i^  o/*  ^f 'ay,  as  to 
which  see  further,  post,  §  360  et  seq.  But  whether  a  way  be  a  private  way 
or  a  highway  depends  much  upon  reputation. (/) 

(rfi  13  Co.  33 ;  Sfy.  400.     See  also  R.  v.  Skinner,  .5  Esp.  219.  (e)  13  Co.  33. 

(g)  8  H.  7,  .5  ;  Bro.  Nuisance,  pi.  23.  (//;  See  Diof.  iii.  tit.  Highways, 

(ij  Palm.  339.  {k)  R.  v.  Buckeridirc,  4  Mod.  48. 

(l)  n.  V.  Biiccleufrh  (Duchess,)  1  Salk.  358;  S.  C,  6  Mod.  1.50. 

(7rti  Palm.  38S) ;  2  R..11.  Rep.  412 ;  Hosklns's  case,  Godb.  400 ;  R.  v.  Watts,  1  Salk.  357 ; 
Foster's  case,  4  Vin.  Abr.  .504. 

('/)  Duncombc's  cnse,  Cro.  Car.  366 ;  Hcnn's  case,  W.  Jo.  236. 

lo)  Anon.,  1  Sid.  464.  (v)  Henn's  case,  sup. 

(7)  R.  V.  Hillarsdcn,  1  Kcb.  894.     Sec  also  R.  v.  Hatfield,  (Inliabs.,)  4  B.  &  A.  75. 

(r)  R.  V.  Stou^liton,  2  Saund.  160.  (s)  R.  v.  Flecknow  (luhabs.,)  I  Burr.  461. 

(/;  1  Vent.  18J.     Sec  also  Scnhouse  v.  Cliristian,  1  T.  R.  578. 


88  CRABb's    LAW    OF    REAL    PROPERTY. 

A  private  way  may  become  public  either  by  act  of  Parliament,  as  by  m- 
closure  acts,  or  by  its  presumed  dedication  to  public  use.  As  to  what  consti- 
tutes a  dedication  has  been  a  matter  of  some  question.  At  first  it  seems  to 
have  depended  upon  the  length  of  time  that  the  road  had  been  left  without 
any  bar  or  other  obstruction, (z/)  but  the  intention  has  since  been  considered 
as  the  rule  ;(a')(1)  but  the  tenant  cannot  bind  the  inheritance  in  cases  of  this 
kind  ;(?/)  so,  if  the  dedication  be  not  made  openly,  and  Avith  a  deliberate  pur- 
pose, it  will  not  be  admitted  •,[z\  so,  where  it  was  proved  that  a  bar  had  been 
put  up,  the  right  of  way  was  negatived  ;(«)  so,  Avhere  the  owner  was  com- 
pellable to  make  an  occupation  road  for  particular  persons,  this  was  held  to 
rebut  the  presumption  of  a  dedication  ;(6)  but  where  a  place  was  altogether 
r*infi1  ^^^^  without  bar,  or  chain,  or  any  other  mark  *of  private  property, 
L  -'  this  was  declared  to  be  a  public  road.(c)  As  to  whether  there  can 
or  cannot  be  a  partial  dedication  of  a  way,  see  2  M,  &  S.  263,  1  Campb.  203, 
n.,  7  B.  &  C.  266  ;(2)  but  if  a  general  grant  be  once  made,  the  grantor  can- 
not resume  his  rights  to  the  hinderance  of  the  public,  and  a  highway  cannot 
be  changed  or  diverted  without  the  qeeen's  license  or  the  authoritj^  of  Par- 
liament. (</) 


SECTION  XI. 

WATER. 
§  104,  Under  what  name  Water  passes, 

1.  Sea. 


§  105.  Rights  'connected  with  tlie  Sea. 

Limits  of  the  Adiiiiraity  or  Common 

Law  Jurisdiction. 
Property  in  the  Soil  of  the  Sea. 
Ground  Derelict, 


§  105.  Alluvion. 
Avulsion. 

fishing  in  the  Sea. 
Wreck,  A:c. 
Right  of  bathing  in  the  Sea. 


II.  Hfbcrs. 
106,  Definition.  |     106.  Pablic  or  Private. 

1.  Public  Rivers. 


107.  What  a  navigalile  River. 
Rights  in  Rivers. 
Property  in  the  Beds  of  Rivers. 
Banks  the  ProjMsrty  of  the  Owner. 


107.  No  Common-law  Right  to  Towing- 
paths. 
Rights  of  the  Crown, 
Derelict  Lands,  «Sic,  in  Rivers, 


107.  Eyots  in  Rivers, 

{ii)  Rugby  Charity  v,  Merryweather,  11  East,  376. 

Ix)  W'oodyer  v.  Hadden,  5  Taunt.  126,  recognised  in  Wood  v.  Veal,  5  B.  9i.  A.  457. 

(y)  Wood  V.  Veal,  5  B.  &  A.  457.  (?)  Roberts  v,  Karr,  1  Campb.  26:2,  n. 

((/)  Lcthbridge  v.  Winter,  Id.  263,  n. 

lb)  R.  V.  St,  Benedict  (Inhabs.,)  4  B.  &,  A.  447, 

(c)  R.  V.  Lloyd,  1  Cimpb.  260. 

{(1)  R.  V.  Warde,  Cro.  Car.  266 ;  S.  C,  1  Anders,  344, 

(1)  Hence  there  may  be  a  practical  dedication  to  the  public,  as  of  a  right  of  passage  to 
and  from  a  public  building,  which  will  not  authorise  an  adjoining  proprietor  to  open 
windows  or  doors  on  the  way  ;  and  that  intent  is  to  be  inferred  from  their  acts.  Govvcu 
V,  The  Exchange,  5  W.  &.  S,  141. 

(2)  Sec  105,  n.  1. 


THE     SEA. 


89 


2.  Private  Rivers. 


^  103.  Incidents  1o  jirivate  Rivers. 
Fisheries  of  different  Kinds. 
Common  Fishery. 
Free  Fishery. 
Several  Fishery. 
User  of  a  Fisliery. 


110.  Property  in  the  Soil, 


§  108.  Ratcability  of  a  Fishery. 
Titl-.e  of  Fish. 
109.  Tolls, wlun  drmandable  or  otherwise. 
Toll-thorouirh. 

lolls  in  respect  of  ai:cicnt  Water- 
mills. 


III.  Canal,  IDocUs,  ifr. 

j      110.  Shares  in  River  and  Canal  Cos. 
110.  Damage  to  Locks,  ic. 

*IV.  ^Ponlis,  JDcrows,  &rc.  [*107] 


111.  Fish-ponds. 

Pro])erty  in  the  Fish. 
Stealing  Fish. 
Injuries  to  Fish-ponds, 


11;?.  Decoys,  how  protected. 

Mills. 

Destroying  Dams  of  Mill-ponds. 


V.  Schjcrs. 


113.  Definition  of  a  Sewer. 
Commissions  of  Sewers. 
Jurisdiction  of  the  Commissioners  of 

Sewers. 
Land  rateable  for  Repairs  of  Sewers 


113.  Obligation  of  Individuals  to  repair  by 
reason  of  Tenure. 
Parties  not  to  be  assessed,  when. 
When  the  whole  Level  is  bound. 


104.  Water,  in  the  general  sense  of  the  term,  is  comprehended  under 
land,  and  was  not  demandable  by  the  name  of  water  in  a  praecipe,  (before  the 
3  &  4  VV.  4,  c.  27,  abolishing  that  writ,  see  Dig.  P.  iii.  tit.  Limitations,)  but 
the  land  whereupon  the  water  flowed  was  demandable  as  so  many  acres 
terrae  aqua  coopertas  ;[e)  so,  if  a  man  be  seised  of  a  river,  and  by  deed  grants 
separalcm  piscariam  in  the  same,  and  makes  livery  of  seisin  sectrndinnfor' 
mam  charti,  the  soil  does  not  pass  [but  on  this  point  see  further,  post,  § 
108(e)]  nor  the  water,  for  the  grantor  may  take  water  there  ;  and  if  the  river 
become  dry,  he  may  take  the  benefit  of  the  soil  ;(e)  for  the  same  reason,  if  a 
man  grant  aquam  svam,  the  soil  shall  not  pass,  but  the  piscary  within  only  ;(e) 
but  stagninn  (a  pool)  consists  of  land  and  water,  and  therefore  by  that  name 
land,  as  well  as  water,  will  pass  ;  so,  by  the  name  of  a  gulf  or  deep  pit,  land 
and  water  will  pass.(e) 

Water,  hke  land,  is  distinguishable  into  different  parts,  as  the  sea,  rivers, 
docks,  canals,  ponds,  and  sewers,  to  each  of  which  are  attached  difli^rent  rights 
and  incidents  ;  to  these  may  be  added  a  watercourse  or  the  use  of  running 
water,  which  being  an  incorporeal  hereditament  demands  a  distinct  consider- 
ation in  its  proper  place. 


10.5.  The  sea  is  open  to  all  the  queen's  subjects  for  all  lawful  purposes, 

(e)  1  Inst.  4,  a. 


90         crabb's  law  of  real  property. 

it  being  called  "the  great  highway  of  the  world,"  and  therefore  common  to 
all  '•,{/)  but  this  general  right  may  be  restrained  by  particular  rights  acquired 
either  by  grant  from  the  Crown,  or  prescription  which  supposes  a  grant,  or 
by  custom.  The  matters  connected  with  the  sea  are  the  jurisdiction  to  be 
exercised  on  the  ocean  as  a  municipal  right,  the  property  in  the  soil  of  the 
sea  itself,  and  herein  of  land  derelict,  alluvion,  and  islands  arising  therein, 
the  right  of  fishery,  and  of  taking  wrecked  goods,  and  lastly  the  right  of 
bathinff  in  the  sea. 

That  arm  or  branch  of  the  sea  which  lies,  as  Lord  Hale  observes,  within 
the  fauces  lerrye,  where  a  man  may  discern  between  shore  and  shore, 
is  within  the  common-law  jurisdiction,  that  is,  within  the  jurisdiction 
of  the  sherifT  or  coroner  ;  that  part  which  lies  without,  the  main  sea  or  the 
high  sea,(^)  is  within  the  sole  jurisdiction  of  the  Admiralty  :  so,  below  the 
low  water  mark  the  admiral  has  the  sole  jurisdiction  ;  but  between  the  high 
water  mark  and  the  low  water  mark  the  common  law  and  the  admiral  have 
divisum  imperum  interchangeably,  scil.  one  super  aquiim  and  the  other 
super  terrain. [h^j  These  distinctions,  so  far  as  regards  judicial  proceedings, 
are  of  less  importance  now  than  they  were  formerly,  in  consequence  of  the 
statutory  provisions  respecting  the  admiral's  jurisdiction  ;  (see  Dig.  P.  i.  tit. 
Admiral,  Admiralty ;)  but  so  far  as  regards  private  rights  there  may  still  be 
questions  arising  out  of  this  distinction,  as,  where  a  contract  took  place  in  the 
Thames  adjoining  St.  Katharine's,  prohibition  was  granted. («) 

It  is  agreed,  that,  as  the  queen  has  the  sovereign  dominion  over  the  sea, 
she  has  the  right  of  property  in  the  soil ;  hence  it  follows  that  what  was  the 
r*inQl  ^'^^'^''''s  when  covered  *with  water  becomes  hers  also  when  the 
1  -^  waters  have  left  it  ;(/t)  therefore  in  one  case  where  a  quantity  of 

ground  was  left  by  the  sea,  and  the  question  was  whether  it  belonged  to  the 
King  by  his  prerogative,  or  whether  he  whose  grounds  were  adjoining  should 
have  it,  it  was  adjudged  that  if  the  sea  gradually  decreases,  the  ground  shall 
not  belong  to  the  King  ;  sed  secus,  where  a  great  quantity  which  was  drowned 
before  is  left.(/)  So,  if  the  sea-marks  were  gone,  so  that  it  could  not  be 
known  if  ever  there  was  land  there,  the  land  gained  from  the  sea  was  held 
to  belong  to  the  King ;  but  if  the  sea  covered  the  land  at  the  flux  of  the  sea, 
and  retreated  at  the  reflux,  so  that  the  sea-marks  were  known,  such  land 
should  belong  to  the  owner. (m)  So,  lords  of  manors  may  claim  lands  dere- 
lict by  grant  or  prescription ;(«)  but  they  cannot  prescribe  to  have  lands  be- 
yond the  low  water  mark  because  a  subject  can  have  no  use  of  such,  yet 
lands  between  the  high  and  low  water  mark  may  be  prescribed  to  belong 
to  a  manor,  because  such  lands  are  dry  every  twelve  hours  in  every  day  ;(o) 
so,  grants  may  be  made  of  land  to  be  recovered,  but  in  this  it  is  to  be  under- 
stood that  the  land  must  be  reduced  into  possession  within  a  reasonable 
time.(p) 

Alluvion,  by  which  is  understood  the  secret  accession  of  soil  to  other  soil, 

( /■)  Per  Best,  C.  J.,  Blundcll  v.  Catteral],  5  B.  &  A.  274. 

(<r)  Ilalc  do  Jarc  Maris,  10.  (//)  Sir  H.  Constable's  case,  5  Co.  107. 

(i)  Lcigli  V.  Burley,  Ovv.  122. 

(t)  Callis  on  Sewers,  47.  See  aho  Hale  de  Jure  Maris,  e.  4;  Davis,  56  ;  Constable's 
case,  5  Co.  108  a.  (/)  Abbot  of  Ramsey's  case,  3  Dy.  32u. 

(m)  Corporation  of  Rumney's  case,  3  Dy.  326,  pi.  2,  in  marg. ;  see  also  1  Keb.  301  ;  2 
Vent. -708.  (n)  26  Vin.'Abr.  574,  pi.  3. 

(o)  Callis,  p.  49.  {p)  Att.-Gen.  v.  Richards,  2  An.str.  603. 


THE     RIGHT     OF     FISHING,     ETC.     IN     THE     SEA.  91 

produced  by  the  sea  casting  up  sand  and  earth  so  as  to  make  fresh  soil, 
belongs  not  to  the  queen,  but  to  the  owner  of  the  ground  to  which  it  attaches 
itself,  on  the  same  principle  as  lands  gradually  derelict  belong  to  the  sub- 
ject •,{q){l)  and  it  is  said  by  a  writer  of  authority  that  a  grant  of  a  manor  or 
land  contiguous  to  the  sea,  *unci  cmn  maritimis  incrcmcntis,  will  r  suo"! 
pass  the  right  to  alluvion,  though  not  to  lands  derelict. (r)  ^• 

There  is  also  a  distinction  taken  between  alluvion  Avhich  is  an  impercep- 
tible increase,  and  avulsion  which  is  an  accession  of  land  by  its  breaking  off 
from  other  land  ;  in  this  latter  case  if  the  direplion  be  sudden,  and  it  be  un- 
known from  what  land  it  is  severed,  it  will  belong  to  the  CroAvn  ;  but  if  the 
owner  of  the  land  from  which  it  is  torn  ofl'be  known,  it  shall  belong  to  him.(.s) 
So,  in  respect  to  islands  rising  in  the  sea,  they  belong  prima  facie  to  the 
queen  as  universal  occupant  ;(f)  but  if  that  part  of  the  sea  where  the  island 
rises  happens  to  belong  to  a  subject,  that  forms  an  exception  to  the  rule  of 
law,  and  may  be  claimed  by  the  owner  upon  the  general  principle  that  a 
man  shall  be  enabled  to  repossess  himself  of  his  land  in  all  cases  where  he 
can  establish  his  claim. (a:) 

A  right  of  fishing  in  the  sea  is  properly  a  public  right,(2)  the  exercise  of 
which  is  regulated  by  statutory  provisions  for  the  benefit  of  the  public  ;  (see 
Dig.  P.  i.  tit.  Fish,  Fisheries);  but  in  this  as  in  other  cases  of  public  rights 
there  may  be  a  claim  to  a  private  right  grounded  on  an  immemorial  grant  or 
prescription  as  to  common  of  fishery. (i/) 

The  right  of  taking  goods  wrecked,  royal  fish,  and  swans  may  all  be  vest- 
ed in  subjects  as  royal  franchises,  for  which  see  further,  post,  under  that 
title. 

The  right  of  bathing  in  the  sea  has,  after  much  discussion  and  delibera- 
tion, been  determined  (though  not  unanimously)  not  to  be  a  common  law 
right  ',{z)  and  in  all  cases,  if  public  decency  is  violated,  it  is  an  indictable 
offence. 

(9)  Hale  de  Jure  Maris,  p.  29.  Sec  also  R.  v.  Yarboroii?li  (Lord),  3  B.  &  C.  91  ;  ^- C'. 
4  D.  &,  R.  790 ;  S.  C,  affirmed  in  the  Honse  of  Loids,  5  Bing.  163 ;  S.  C,  2  Bligh,  N.  S., 
147  ;  S.  C,  1  Dow,  N.  s^.  170 ;  S.  P.  Scratton  v.  Brown,  4  B.  &,  C.  484,  where  llie  distinc- 
tion between  derelict  land  and  alluvion  is  fully  recognised. 

(r)  Hale  de  Jure  Maris,  17,  18. 

(s)  Fleta,  1.  3,  c.  2,  s.  6.     Sec  also  Bract.  1.  2,  c.  2,  s.  2.  (0  Callis,  44. 

(»)  Fleta,  1.  3,  c.  2,  ss.  6.  9  ;  Britt.  8G  b  ;  Callis  on  Sewers,  44,  45. 

{x)  See  post,  §  107  ;  Blundell  v.  Calterall,  5  B.  &  A.  274. 

{y)  Blundell  v.  Cattcrall,  5  B.  &,  A.  268.  (?)  R.  v.  Crunden,  2  Campb.  b9. 


(1)  Ingrahani  v.  Wilkinson,  4  Pick.  273,  and  tlie  right  of  the  owner  is  defined  by  e.^- 
tcndino-  the  lines  over  the  alluvion  in  the  same  direction  that  they  reach  the  bunk  ol  tlie 
river.  ''Ball  v.  Slack,  2  Wharton,  540.  And  the  older  title  prevails  in  case  of  a  collnsion. 
Wharton  v.  Morris,  per  Sergeant,  J.,  at  Nisi  Prius,  S.  C.  Penna.  The  same  rule  pre\^ils 
in  Louisiana  under  the  civil  law.  New  Orleans  v.  The  United  States,  10  Pet.  717.  But 
it  was  there  iicld  under  a  peculiar  law  existing  there,  that  such  alluvion  in  front  of  sn 
incorporated  city  or  town  was  public  pro[)erty  vested  in  the  city.  S.  C,  Cocln-an  v.  loot, 
7  Martin,  N.  S.  622.     This  rule  does  not  prevail  in  Pennsylvania,  Ball  v.  Slack,  ante. 

(2)  Adams  v.  Pease,  2  Conn.  483. 


92  crabb'slawofrealpropertt. 

[nil]  *ir.  miters, 

106.  A  river  is  defined  to  be  a  running  stream,  pent  in  on  either  side  with 
walls  and  banks,  and  it  bears  that  name  as  well  whore  the  waters  flow  and 
reflow,  as  where  they  have  their  current  one  way. 

Rivers  are  either  public  or  private.  A  public  river,  otherwise  called  a 
navigable  river,  is  where  there  is  a  common  navigation  exercised.  A  pri- 
vate river  is  where  there  is  no  public  right  of  passage. 

1.  Public  Rivers. 

An  ancient  river,  which  has  been  navigable  from  time  immemorial,  or 
which  has  been  declared  to  be  so  by  act  of  Parliament,  is  unquestionably  a 
public  navigable  river  ;(^)(1)  and  prima  facie  a  river  which  flows  and  re- 
flows,  and  is  an  arm  of  the  sea,  is  common  to  all  ;[b)  but  in  Lynn  (Mayor, 
&c.)  V.  Turncr(c)  this  was  not  admitted,  and  the  public  right  to  navigate  the 
stream  was  denied  ;('^^)(1)  however,  in  Miles  v.  Rose,(e)  the  decision  was  in 
favour  of  the  public  right ;  but  whether  a  river  be  navigable  or  not  is  a  ques- 
tion of  fact  for  a  jury.(y) 

107.  The  rights  in  public  rivers  are  much  the  same  as  those  enjoyed  in 
the  sea.  As  a  rule,  the  soil  of  ancient  navigable  rivers,  where  there  is  a  flux 
and  reflux  of  the  sea,  belongs  to  the  Crown  ;(^)  but  the  banks  of  such  rivers, 
together  with  the  trees,  &c.,  belong  to  the  owners  of  the  adjacent  grounds, 
although  they  cannot  justify  digging  or  casting  them  down,(/i)  and  it  is  the 
same  with  the  sea  banks.(/)     The  soil  of  other  streams  belongs  to  the  sub- 

.,,  .  -,  ject,(2)  that  is  to  the  owners  of  the  adjacent  grounds,  to  each  *re- 
L  -^  spectively,  as  far  as  the  middle  of  the  stream  ;  public  rivers,  therefore, 
so  far  as  concerns  the  flowing  and  reflowing  of  the  tide,  and  as  they  partici- 
pate of  the  nature  of  the  sea,  are  denominated  royal  streams,  and  so  far  as 
they  are  navigable  by  all  her  Majesty's  subjects,  they  are  properly  consider- 
ed as  highways,  with  this  difl"erence,  however,  that  if  a  way  be  founderous 
and  out  of  repair,  the  public  have  a  right  to  go  on  the  adjoining  land,  but  if 
a  river  should  happen  to  be  choaked  up  with  mud,  this  would  not  give  the 

(6)  22  Ass.  pi.  93 ;  cfted  by  Holt,  C.  J.,  1  Mod.  lO.'J. 

(c)  Cowp.  86;  S.  C,  semb.,  Loti't,  556.  (il)  lb.;  see  also  4  R.  ^^  C.  602. 

(e)  5  Taunt.  705 ;  S.  C,  1  Marsh.  313.  (./)  Vooght  v.  Winch,  2  B.  &  A.  662. 

(?)  R.  V.  Trinity  Hoase,  1  Sid.  86;  S.  C,  1  Keb.  310. 

(/()  Callis,  73.  (!)  Id.  74. 


(1)  The  power  to  navin-ate  is  said  to  constitute  the  distinction,  in  Palmer  v.  Mulligan,  3 
Caine,  319.     People  v.  Piatt,  17  Johns.  211. 

(2)  There  is  a  disthictioa  tikcn  in  some  of  the  States  with  respect  to  rivers,  on  the 
ground  that  t!ie  English  rule  is  not  applicable  under  the  peculiar  circumstances  of  this 
couatry  ;  and  it  has  been  held,  that  large  navigable  streams  above  the  flow  of  the  tide,  arc 
subject  to  the  rules  of  property,  in  case  of  tide  waters.  Carson  v.  Blazer,  2  Bin.  475. 
Gates  V.  Wadlington,  1  M'Cord,  530.  Wilson  v.  Foibes,  1  Des.  30.  In  Virginia  the  rule 
has  been  adopted  by  statute  for  the  western  waters.  But  there  arc  other  states  which 
recognize  the  common  law  to  its  fullest  extent;  and  consider  that  the  soil  of  navigable 
rivers  above  tide  water,  however  large,  belongs  to  the  owners  of  the  adjoining  banlis,  and 
the  public  have  but  a  right  of  passage.  People  v.  Piatt,  17  Johns.  211.  liooker  v.  Cum- 
niings,  20  ib.  100.  Adams  v.  Pease,  2  Conn.  483,  Gavit  v.  Chamacrs,  3  Ohio,  496. 
Walters  v.  Lilly,  4  Pick.  145. 


RIGIITSINPUBLICRIVERS.  93 

public  a  riaht  to  cut  another  passage  through  the  adjoining  lands. (A;)  On 
iliis  principle  it  has  been  decided,  in  more  than  one  case,  that  there  is  no 
common-law  right  to  towing-paths  on  the  banks  of  navigable  rivers,  and  that 
the  right  can  be  claimed  only  by  custom, (/)  although  in  R.  v.  Cloworth 
(Inhabs.)(7?i)  it  is  said  that  if  one  have  land  aiijuining  on  a  navigable  river, 
every  one  that  uses  that  river  has,  if  occasion  be,  a  right  to  a  way  by  the 
brink  of  the  water  over  that  land,  or  farther  in  if  necessary. 

On  the  same  principle,  no  port,  wharf,  or  quay  can  be  erected  without  the 
license  or  charter  of  the  Clueen,  nor  is  there  any  general  right  to  unload 
merchandise  on  the  shore  of  the  sea  or  the  banks  of  the  rivers  ;(1)  so,  not 
to  stake  nets,  nor  to  take  away  sand  or  stone. (??)  But  these  rights  may  be- 
long to  the  subject  by  grant  or  prescription,  and  the  right  of  the  Corporation 
of  London  to  drive  piles  into  the  bed  of  the  river  Thames  was  vindicated  on 
this  ground  ;(o)  so,  on  the  same  ground  the  Trinity  House  may  take  gravel 
and  sand.(;j) 

So,  the  queen  possesses  certain  rights  in  rivers  as  that  no  one  should  set 
up  a  ferry  without  prescription  or  a  charter,  unless  it  be  for  the  use  of  his 
own  family  ;  also  a  right  to  bar  fishing  or  fowling  for  a  certain  time  •,[q)  and 
also  a  jurisdiction  to  remove  nuisances  by  a  commission  of  sewers. (rj 

*The  law  respecting  lands  derelict  by  the  recess  of  the  sea  applies  -, 

also  to  navigable  rivers  ;  if  a  stream  deprive  a  man  of  his  ground  by  L  -J 
making  a  channel,  and  it  afterwards  return  to  its  ancient  coui-se,  the  original 
ownership  will  not  be  lost  if  it  can  be  ascertained  ;(s)  and  the  same  in  regard 
to  alluvion  ;  but  it  is  said  that  if  the  field  of  a  man  becomes  detached  by  the 
force  of  the  stream,  and  attaches  itself  to  the  soil  of  another,  and  remains  so 
a  sufficient  time  for  trees  to  grow  thereon,  the  trees  shall  be  the  property  of 
the  latter,  on  the  principle  that  trees  belong  to  the  person  in  whose  hand  they 
are  first  planted  ■,{t)  yet  it  seems  that  by  custom  a  river  may  form  the  boun- 
dary of  lands,  whatever  course  it  may  take,  as  in  the  Case  of  the  Severn 
below  Gloucester. (.t) 

As  to  eyots  or  small  islands  in  rivers  the  rule  of  law  seems  to  be,  that  if 
it  rise  in  the  middle  of  a  river,  it  belongs  to  the  owners  of  the  land  on  either 
side,  according  to  its  breadth  near  the  banks,(,v)  and  therefore  if  it  lies  nearer 
to  one  bank  than  the  other,  so  much  more  will  belong  to  the  owner  near  to 
whose  bank  it  lies  than  to  the  other. (c) 

By  the  Malicious  Injuries  Act  unlawfully  destroying  any  sand-bank  or 
sea-wall,  or  the  bank  or  wall  of  any  river,  canal,  or  marsh,  whereby  any  land 
should  be  overflowed,  is  declared  a  felony  punishable  with  transportation  for 
life  or  seven  j^ears. 

(k)  Ball  V.  Herbert,  3  T.  R.  2G3. 

(/i  Id.  259,  citiiig.Zan^ers  v.  Whiskard  and  Vernon  v.  Prior.  See  also  Pierse  v.  Fau- 
conberjr  (Ld.^,  1  Burr.  292. 

(w)  6  Mod.  163.  (n)  Blundcll  v.  Cattcrall,  sup. 

(o)  R.  V.  Smith,  1  Dougl.  441.  (  p)  R.  v.  Trinity  House,  sup. 

(V)  Hale  de  Jur.  Mar.  6.  (r)  C:illis,  passim. 

(s)  Fleta,  lib.  3,  c.  2,  s.  10.  (0  Holder  v.  Ccates,  sec  ante,  §  9G. 

{x)  Hale  de  .lure  Maris,  6.  iy)  Fleta,  lib.  3,  c.  2,  s.  C. 

(?)  Fleta,  lib.  3,  c.  2,  s.  6 ;  Bract,  lib.  2,  c.  2. 


(1)  Ball  V.  Slack,  2  Whart.  539. 


94  craeb's    law    of    real   property. 

As  to  fisheries  and  tolls,  in  respect  of  water,  see  infra,  §  108  ;  and  as  to 
obstructions  to  rivers,  see  post.  Injuries  to  Things  real. 

2,  Private  Rivers, 

108.  Private  rivers  are  not  navigable,  and  the  soil  most  commonly  belongs 

to  an  individual  or  to  the  owner  of  the  adjacent  land,  on  either  side.(o)     To 

such  rivers  belong  in  a  particular  manner  the  private  right  of  water  known 

-,  bv  *the  name  of  a  watercourse,  and  some  other  easements  connected 

J  with  water,  of  which  see  further,  post,  §  398. 

AmoniT  the  incidents  to  private  rivers  in  common  with  navigable  rivers, 
are  fisheries, (1)  tolls,  and  rateability,  &c. 

A  fishery  is  either  a  liberty  or  right  of  fishing  arising  by  reason  of  the 
proprietary  of  the  soil,  as  a  man's  right  to  fish  in  his  own  water,  which  is 
incident  to  his  enjoyment  of  the  land  covered  with  water,(&)(2)  or  it  is  a 
liberty  without  the  soil  or  severed  from  the  land,  of  which  there  are  different 
kinds",  as — 1.  Common  fishery,  a  right  of  fishing  common  to  all,  as  a  fishery 
in  the  sea;  2.  Free  fishery,  or  an  exclusive  right  to  fish  in  any  public  water, 
as  in  an  arm  of  the  sea;(3)  3.  Several  fishery,  a  right  to  fish  in  a  private 
water,  either  exclusively  or  in  conjunction  with  the  owner  of  the  soil ;  4. 
Common  of  piscary,  or  a  Hberty  for  one  or  more  to  fish  in  the  water  of 
another. 

Although  these  distinctions  are  recognised  in  the  books,  yet  the  terms 
"  common,"  "  free,"  and  »  several"  seem  to  be  applied  indiscriminately  to 
fisheries  either  in  public  or  private  waters. (c) 

A  common  fishery,  as  above  defined,  is  that  which  properly  belongs  to 
the  sea  and  navigable  rivers,  it  being  a  settled  rule  of  law,  that  the  sea  and 
all  navigable  rivers  are  open  to  all  her  Majesty's  subjects  for  the  purpose  of 
fishing  ;(rf)(4)  and  there  can  be  no  prescription  for  a  right  to  fish  in  the  sea 
as  annexed  to  certain  tenements  ;(e)  but  there  may  be  a  right  either  by  grants 
from  the  Crown,  or  by  statutory  provisions,  for  which  see  Dig.  P.  i.  tit.  Fish, 
Fisheries. 

A  free  fishery,  according  to  the  above  definition, (g)  is  like  a  free  warren 
a  royal  franchise. (/t) 

But  as  to  what  is  to  be  understood  by  a  several  fishery  the  books  are 

*by  no  means  agreed,  and  it  is  said  to  be  a  point  not  yet  quite  set- 

L         -J  tled.(i)     Lord  Coke  says,  »  A  man  may  prescribe  to  have  separalem 

{a)  See  ante,  §  106.  (/')  Hale  dc  Jur.  Mar.  18  ct  seq. 

(c)  Bract.,  lib.  4,  c.  45,  s.  4 ;  4  H.  6,  1 1,  pi.  7 ;  F.  N.  B.  88D  ;  Fitz.  Abr.  Ass.  422 ;  Cro. 
Car.  5.54  ;  1  Vent.  122  ;  Cartii.  285. 

{d)  Lord  Fitzvvaltcr's  case,  1  Mod.  106;  S.  C.  3  Kcb.  242;  S.C.  2  Lev.  139  ;  1  Freem. 
414;  Royal  Fishery  in  the  River  Bann,  Dav.  149  ;  Carter  v.  Murcot,  4  Burr.  2162. 

(e)  Ward  v.  Cresswell,  Willes,  265.     See  also  8  E.  4,  10,  cited  Kitch.  45. 

Ca-)  See  2  Comm.  39.  (A)  See  post,  §  629. 

(i)  Kinnersley  v.  Orpe,  1  Dougl  56. 


(1)  E\-cluslvc  in  the  owners  of  land  on  rivers  above  tide  water.     Adams  v.  Pease,  2 
Conn.  483. 

(2)  Waters  v.  Lilly,  4  Pick.  147. 

(3)  But  cvfry  presumption  is  against  it,  Gould  v.  James,  6  Cow.  376  ;  and  in  Melvin  v. 
Whiting,  7  Pick.  81,  it  was  said  a" free  fishery  did  not  mean  an  exclusive  one. 

(4)  Gould  V.  Jam.s,  6  Cow.  369.     Adams  v.  Pease,  2  Conn.  483. 


RIGHTSINPRIV  ATE     RIVERS.  95 

piscariam  In  such  a  water,  and  the  owner  of  the  soil  shall  not  fish  there,  but 
if  he  claim  to  have  communiam  piscarise  or  liberam  piscariam,  the  owner 
of  the  soil  shall  fish  there. "(^A:)  On  the  other  hand,  in  Kemp  v.  Smith, (/^ 
it  is  said  that  he  who  has  a  several  fishery  is  owner  of  the  soil,  and  there- 
fore it  is  a  good  plea  in  an  action  brought  by  him,  that  it  is  liberam  pisca- 
riam. In  Seymour  v.  Ld.  Courtenay,(m)  it  was  ruled  that  a  grant  of  fish- 
ery, with  the  exception  of  oysters,  and  a  reservation  of  a  right  to  take  fish  for 
the  grantor's  own  table  constituted  a  several  fishery  ;  and  in  this  case  the 
Court  declined  giving  any  opinion  on  the  point,  whether  ownership  of  the 
soil  be  essential  to  a  several  fishery  or  otherwise  ;  and  it  was  added,  "  that  a 
partial  independent  right,  or  a  limited  liberty,  not  derogating  from  the  right 
of  another,  is  not  inconsistent  with  a  several  fisher}'  :  and  therefore,  althouoh 
a  man  has  the  liberty  of  taking  a  particular  species  offish  or  a  certain  quan- 
tity of  fish,  yet  another  having  the  liberty  of  taking  fish  at  all  times  and  for 
all  purposes  should  still  be  deemed  to  have  a  several  fishery  ;(in)  but  it  has 
in  a  subsequent  case  been  held  that  where  a  man  has  a  several  fishery,  the 
presumption  is  that  he  has  the  soil,  and  that  presumption  is  conclusive,  if 
not  opposed. (?2) 

Although,  prima  facie,  every  subject  has  a  right  to  take  fish  upon  the 
sea-shore  between  the  high  and  low  water  mark,  such  general  right  may  be 
abridged  by  the  existence  of  an  exclusive  right  in  some  individual, (o)  and 
the  Crown  may  grant  a  several  fishery  in  a  navigable  river,  or  in  an  arm  of 
the  sea,(7?)  see  further,  post,  §  629.  So  there  may  be  *either  r-s-'iip-i 
reservations  by  the  owner  of  the  soil,  or  limited  grants  by  him,  such  L 
as  weirs,  cfec.  in  certain  rivers  ;{fj'^  and  where  a  person  has  a  right,  under 
ancient  deeds  to  have  a  weir  across  a  river  for  taking  fish,  if  it  appear  that 
such  weir  was  heretofore  made  of  brushwood,  through  which  the  fish  might 
escape  into  the  upper  part  of  the  river,  he  cannot  convert  it  into  a  stone  weii , 
whereby  the  possibility  of  escape,  except  in  times  of  extraordinary  flood,  is 
debarred. (r)  So,  it  has  been  held  that  if  one  have  a  piscary  in  any  water, 
he  has  no  power  to  land  without  the  assent  of  the  owner  of  the  freehold, 
Ipswich  (Inhabs.)  v.  Browne  ;(s)  and  in  this  case  it  was  laid  down  that  in 
every  ferry  the  land  on  both  sides  ought  to  belong  to  the  owners  of  the 
ferrjs  who  otherwise  could  not  land  on  the  other  side  ;  but  tliis  latter  point 
has  been  since  overruled, (^)  and  it  seems  also,  that  evidence  of  an  enjoyment 
of  a  landing  place  for  the  space  of  twenty  years,  by  one  having  a  fishery,  is 
sufficient  to  presume  a  grant  •,{x^  and  it -has  been  said  that  those  who  are 
fishers  in  the  sea  may  justify  going  on  the  adjoining  land,  for  such  fishery  is 
for  the  commonwealth  :{y^  but  this  is  denied  in  Ball  v.  Herbert. (2:) 

A  mere  right  of  fishery,  without  the  ownership  or  occupation  of  the  soil. 
being  an  incorporeal  hereditament,  is  not  within  the  43  El.  as  the  subject  of 
a  rate  ;(«)  hut  a  several  fishery  when  shewn  to  be  identified  Avilh  the  land 
is  liable  to  be  rated. (i) 

(i)  1  Inst.  122. 

(Z)  2  Salk.  637  ;  S.  C.  4  Mod.  186;  Skinn.  342 ;  Holt,  329.  (jn)  5  Burr.  2814. 

(n)  Parthcrichc  v.  Mason,  2  Chit.  662.  (0)  Bagott  v.  Orr,  2  B.&,  P.  472. 

(/>)  Carter  v.  Muicot,  4  Burr.  2162  ;  Oxford,  (Mayor,  &c.)  v.  Richardson,  4  T.  R.  239. 

(y)  1  Mod.  106 ;  R.  v.  Ellis,  1  M.  &  S.  652. 

(/■)  Weld  V.  Hornbv.  7  East,  195.  (s)  Sav.  11. 

(/)  Peter  v.  Kendal,  6  B.  i  C.  703.  (x)   Gray  v.  Bond,  2  B.  &.  B.  667. 

(y)  8E.  4,  IS.  lit.  {z)  3T.  R.263. 

(«)  R.  V.  Ellis,  1  M.  k  S.  665.  (b)  Id.  652. 


96  CRABb's  LAW  OF  REAL  PROPERTY. 

Fish,  whether  taken  in  the  sea,  or  in  rivers  public  or  private,  or  in  private 

waters,  are  not  titheable  except  by  custom,  (c)     As  to  the  preservation  offish 

in  rivers,  lime  of  taking  and  sale  of  fish,  fish-markets,  importation  or  export- 

*i  iTi  ^'i°^^  *o^  fi^*^'  ^'^'^  regulation  of  fisheries  in  general,  see  Dig.  P.  i. 

C       "-J  tit.  Fish,  Fisheries. 

109.  As  a  rule  the  sea  and  navigable  rivers  are  not  subject  to  toll,  because 
by  Magna  Charta  and  other  statutes  every  one  has  a  right  to  go  and  come 
upon  the  sea  without  impediment  ;(rf)  and  therefore  no  duty  can  be  imposed, 
in  respect  of  the  user  of  such  waters,  without  the  license  of  the  Crown.  So 
that,  although  a  man  may  have  trespass  for  unloading  on  his  grounds,  yet  he 
may  not  take  anything  as  a  certain  common  toll,(e)  unless  a  consideration 
be  shewn,  as  coming  into  a  quay  or  wharf,  &c.,  when  a  toll  may  be  demand- 
able  •,{g)  for  toll-thorough,  whether  on  the  land  or  on  the  water,  is  against 
common  right,  and  cannot  be  supported  without  a  consideration  ;(/*)  but  toll- 
traverse,  which  applies  to  private  waters,  may  be  demanded,  because  it  in 
itself  supposes  a  consideration  ;(i)  therefore  a  custom  of  demanding  a  toll  for 
the  repair  of  a  port  has  been  held  good,  for  the  making  a  port  is  a  consider- 
ation.(yt)  So,  a  toll  for  weighage  has  been  supported,  where  the  party  had 
also  the  liberty  of  bringing  the  goods  into  a  port ;(/)  and  the  owner  of  a  port 
may  have  a  toll  by  prescription,  without  alleging  any  consideration  ;(wj)  so, 
for  the  same  reason,  a  toll  for  measurage  has  been  supported  ;(n)  so,  for 
quayage  ;(o)  so,  for  wharfage. (;)) 

The  law  of  toll-thorough,  as  above  laid  down  in  respect  of  ports  and  har- 
bours of  the  sea  (see  supra,)  applies  also  to  navigable  rivers,  where  the  toll 
cannot  be  supported  without  shewing  a  consideration,  Haspurt  v.  Wills, (7) 
^  -,  *Nottingham  (Mayor,  &c.)  v.  Lambert,(r)  where,  for  want  of  shew- 
t-  -^  ing  a  consideration,  the  toll  could  not  be  supported  ;  on  the  other 
hand,  in  R.  v.  Boston  (Corpor,),(5)  the  consideration  of  repairing  a  bridge 
was  held  sufficient  ;  and  in  Steinson  v.  Heath,(/)  which  was  a  case  of  toll- 
traverse,  it  was  held  that  no  consideration  need  be  shown. (?<) 

The  taking  of  toll  in  respect  of  ancient  water  mills  rests  on  custom,  and  if 
more  toll  be  taken  than  what  the  custom  warrants,  the  miller  is  punishable 
for  extortion. (x) 

Tolls  are  not  per  se  rateable  to  the  poor,  yet  when  connected  with  land 
they  are  so.(y)  See  further  Dig.  P.  iii.  tit.  Poor.  As  to  tolls  imposed  by 
Parliament,  the  amount  and  mode  of  imposition  is  regulated  by  the  Act. 

(c)  Noy,  lOS  ;  Long-  v.  Dirccll,  1  Roll.  Abr.  636  ;  Diwes  v.  Huddleston,  Cro.  Car.  333  ; 
Anon.,  1  Vcntr.  5  ;  Scarborougli,  (Earl)  v.  Hunter,  Bunb.  43  ;  S.  C,  '2  Gwill.  621 ;  Au.tcn 
V.  Nicholas,  2  Gwill.  616.  i'l)  1  Mod.  105. 

(e)  Hale  de  Port,  51,  recognised  in  5  B.  &  A.  298.  {ir)  VVilles,  115. 

(A)  22  E.  3,58,  cited  Nottingham,  (Mayor)  v.  Lambert,  Willes,  114. 

(i)  lb.     See  ante,  §  102. 

(A-)  Vinkensterne  v.  Ebden,  1  Ld.  Raym.  334;  S.  C,  1  Salk.  248. 

(/)  London,  (Mayor,  ^c.)  v.  Hunt,  3  Lev.  37  ;  S.  P.,  Exeter,  (Mayor,  &c.,)  2  Wils.  95. 

(m)  Wilkes  v.  Kirby,  2  Lutw.  1519. 

(n)  Yarmouth,  (Mayor,  &c.)  v.  Eaton,  3  Burr.  1402. 

(0)  Sargent  v.  Reed,  2  Str.  1228;  S.  C,  1  Wils.  91. 

(  p)  Colton  V.  Smitli,  1  Cowp.  47 

(7)  1  Mod.  47;  S.  C,  1  Ventr.  47  ;  S.  C,  nom.  Heshord  v.  Wills,  1  Rid.  454;  S.  C,  2 
Keb.  624. 

(r)  Supra.  (s)W.  Jo.  162.  (Q  3  Lev.  430.  (u)  See  supra. 

(x)  R.  V.  Burdett,  1  Ld.  Raym.  148.     See  ante,  §  93. 

(y)  R.  v.  Milton,  3  B.  &  A.  112. 


CANALS,    DOCKS,    ETC.  97 

III.  CTanalfi,  BccUs,  $cc. 

110.  Canals,  clocks  and  other  artificial  waters  erected  under  the  sanction 
of  the  legislature  are  regulated  in  every  respect  by  the  provisions  of  the  Act 
in  each  particular  case,  see  Dig.  P.  iii.  tit.  Railroads  and  Canals ;  but  the 
power  thus  given  by  the  Act  does  not  necessarily  give  the  undertakers  any 
interest  in  the  soil,  except  of  such  land  as  they  purchase  ;  therefore  the 
trustees  of  navigable  rivers  are  held  not  to  be  rateable  as  the  occupiers  of 
land  over  which  such  rivers  pass,  although  they  are  authorized  to  cleanse 
and  enlarge  the  bed  of  the  stream  and  to  remove  all  obstructions  to  the 
navigation,  they  having  no  more  than  an  easement  in  the  river,  which  is  an 
incorporeal  hereditament,  and  no  interest  in  the  soil ; (2:)  and  the  grant  of  a 
navigation  passes  only  an  easement ;(«)  so,  where  by  a  reservation  in  a 
*Canal  Act  the  owners  of  the  soil  were  authorized  to  work  coal  ^ 
mines  under  the  canal,  held  that  the  legislature  having  left  to  the  L  J 
owners  the  entire  dominion  and  benefit  of  their  property,  the  company  who 
had  the  liberty  of  purchasing  their  rights,  could  not  recover  for  any  damages 
done  to  the  canal,  by  working  the  mine  :(6)  j^et  shares  in  navigable  rivers, 
canals  and  waterworks  have  heretofore  in  different  cases  been  deemed  real 
property  ;(c)  but  this  is  mostly  provided  for  in  modern  Acts  of  Parliament 
by  declaring  all  such  shares  to  be  personalty,  see  further,  ante,  §  83. 

The  throwing  down,  levelling,  or  otherwise  destroying  any  lock,  sluice, 
floodgate,  or  other  work,  on  any  navigable  river  or  canal,  is  declared  by  tlie 
Malicious  Injuries  Act  to  be  felony  punishable  with  transportation  for  life. 
See  Dig.  P.  i.  tit.  Malicious  Injuries. 


IV.  J^oittrs,  33ccoi>s,  miXf  oUirv  ^riiJatc  Si^atcrs. 

111.  Private  waters  have  also  certain  rights  attached  to  them,  particularly 
as  regards  fish,  Avild  fowl  and  mills.  Any  man  may  erect  a  fishpond,  or 
water  wherein  fish  are  kept  and  maintained,  it  being  a  matter  of  profit  and 
increase  of  victuals  ;(<^/)  and  there  needs  no  privilege  as  for  making  a  free 
warren  ;(e)  but  the  lord  of  a  manor  may  not  make  such  a  store-place  for  fish, 
as  thereby  to  disturb  the  commonable  rights  of  the  commoner. (y*) 

A  man's  storepond  is  his  several  piscary,  and  he  may  claim  ihe  fish  as 
plsccs  snos.{g'^  So,  fish  in  a  pond  go  to  the  heir  and  not  to  the  executor  ;(//) 
and  a  man  may  have  *an  action  of  account  for  fish  in  a  pond  ;(/)  ^.,f,r|-| 
so,  the  renting  of  a  fishing  in  a  pond  has  been  held  to  give  a  settle-  L         -1 

(z)  R.  V.  Mersey  and  Irwcll  Navigation  Co.,  0  B.  &  C.  95  ;  S.  C.  1  Man.  &.  Rjl.  84  ; 
S.  P.,  R.  V.  Thomas,  9  B,  &.  C.  Ill ;  S.  C,  nom.  R.  v.  Avon  Co.,  4  Man.  &,  Ryl.  23. 

(«)  Aire  and  Calder  Navigation  Co.,  !)  1}.  &  C-.  820  ;  S.  C.  4  Man.  &  Ryl.  728. 

(6)  Wyrly  and  Essington  Canal  Co.  v.  Bradlry,  7  East,  3G8. 

(r)  Drybuttcr  V.  Bartholomew,  2  P.  Wins.  127  ;  Bnckeridge  v.  Ingram,  2  Yes,  G62. 

(rf)  2  Inst.  199.  (e)  Anon.  G  Mod.  183. 

(/)  Reeve  v.  Digliy,  Cro.  Car.  495. 

(ff)  Pollexfcn  V.  Crispin,  1  Vcntr.  122;  S.  C,  nom.  Ashlbrd  v.  Crispen,  2  Keb.  757, 
recognising  Child  v.  Grecnhill,  Cro.  Car.  5.')  1 ;  S.  C,  W.  Jo.  441). 

(/()  Grey's  case,  Ow.  20.     Sec  also  21  II.  7,  2G.  (i)  10  11.  7,  6.  30. 

July,  1846.— 7 


98  crabb's   law   of   real   property. 

ment  ;(/c)  for  fish  in  a  fishery  may  be  said  to  augment  the  inheritance,  so 
as  to  increase  the  estimated  value  of  the  tenement  in  questions  of  settle- 
ment,(^) 

By  the  Larceny  Act  unlawfully  taking  fish  in  any  water,  running  through 
grounds  which  belong  to  a  dwelling-house,  is  declared  a  misdemeanour; 
takinf  fish  in  other  waters  is  make  punishable  with  a  fine  of  £5,  and  the 
tackle  of  persons  unlawfully  angling  may  be  seized.  See  Dig.  P.  i.  tit. 
Larceny.  Stealing  oysters  from  an  oyster-bed  is  by  the  same  act  declared 
a  larceny  ;  and  dredging  for  oysters  in  an  oyster  fishery  is  made  punishable 
by  a  fine  of  ,£20. 

By  the  Malicious  Injuries  Act  breaking  down  or  otherwise  destroying  the 
dam  of  any  fishpond,  or  of  any  water  which  is  private  property  or  in  which 
there  is  any  private  right  of  fishery  with  intent  to  destroy  the  fish,  or  putting 
any  lime  or  noxious  material  therein  with  the  like  intent,  is  declared  a  misde- 
meanour punishable  with  transportation  for  seven  years  or  imprisonment  for 
two  years.     See  Dig.  P.  i.  tit.  Malicious  Injuries. 

112,  Ponds  for  the  breeding  and  maintenance  of  wild  fowl,  which  are 
called  decoys,  are  under  the  special  protection  of  the  law,  therefore  the 
owner  of  such  a  decoy  may  have  an  action  against  anjj^  one  shooting  at,  dis- 
turbing, or  scaring  the  birds,(/)  see  further  Dig,  P.  iii.  tit.  Game. 

Water-mills  like  other  mills  are  corporeal  hereditaments,  (see  ante  §  93 ;) 
and  a  covenant  by  a  lessee  to  repair  a  mill  has  been  held  to  run  with  the 
land.fjn)  With  water-mills  is  essentially  connected  the  law  respecting 
water-courses,  which  being  an  incorporeal  hereditament  will  be  considered 
*more  at  large  hereafter,  see  post,  §  398  et  seq,;  and  as  to  the  dis- 
L  J  turbance  of  such  rights,  see  post,  §  427.  By  the  Malicious  Injuries 
Act  breaking  down  the  dam  of  any  mill-pond  is  declared  a  misdemeanour, 
punishable  with  seven  years'  transportation  or  imprisonment  for  two  years, 
and  if  the  offender  be  a  male,  with  a  whipping,  once,  twice,  or  three  times. 
As  to  burning  or  destroying  mills  themselves,  see  ante,  §  93. 


V.  ieetorrs. 

113.  A  sewer  is  properly  a  trench  artificially  made  to  carry  water  into 
the  sea,  but  a  commission  of  sewers  comprehends  in  it  much  more  than  what 
was  originally  understood  by  the  term.  The  protection  of  the  land  against 
inundations,  which  is  the  object  of  such  commissions,  was  deemed  a 
matter  of  great  importance  at  an  early  period,  although  the  first  statute  on 
the  subject  did  not  pass  before  the  reign  of  Henry  IV,  ;  it  was,  however, 
followed  by  many  other  statutes  in  subsequent  reigns,  see  Dig.  P.  iii.  tit. 
Sewer. 

The  commissioners  of  sewers  have  jurisdiction  over  sewers  communicating 
with  a  navigable  stream,  or  with  the  sea  above  the  point  where  the  tide  ebbs 

(Jc)  R.  V.  Old  Alrcsford  (Inliab.)  1  T.  R.  358. 

(/)  Keble  V.  Hcckringfill,  11  Mod.  74.  130  ;  P.  C,  3  Salk,  9  ;  S.  C,  Holt,  14  ;  Bull.  N. 
P.  79,  rcco£rnis(:d  in  f'arrington  v.  Taylor,  1  I  East,  ,571. 
{in)  Brett  V.  Cumberland,  Cro.  Jac.  521  ;  2  Roll.  Rci>,  G3. 


sEV;^»jji>  .-  .    .  •  99 

if  it  be  useful  for  navigation,  and  if  the  place  over  which  the  jurisdiction  is 
to  be  exercised  is  likely  to  he  benefited  byt  Jt,;(r?)  so,  their-jurisdjction  extends 
over  sea-walls  and  banks,  as  also  the  bati-ks  raid  walls  of  na-\:igable  and  other 
rivers  that  have  their  course  to  the  sea  ;  ^^- tliey  have  power  over  gutters, 
ditches,  ponds,  pools,  sewers,  and  streams,  so  ffir  as  they  are  fcir  the  benefit 
of  the  commonweahh,  but  such  as  are-fences  for  pri^'aie  grounds  cnlv,  are  not 
properly  within  the  commission. (o)  '"V^,*  ^'  ' 

For  the  charges  of  making  and  repairing  sewens,  atid  such  .tP.ir>gs  as 
belong  thereto,  the  land  in  general  constitutes  the  *properiy  that  ie- • '  -. 
rateable,  copyhold  as  well  as  freehold  ;[p\  so,  a  tenement  .ia  her'  L  -* 
Majesty's  dock-yard,  deriving  a  benefit  from  pubUc  sewers,  and  occupied  by 
an  officer  of  government,  who  pays  no  rent,  is  notwithstanding  liable  to  the 
rate  ;(<^)  so,  all  things  which  lie  in  tenure  ;(r)  so,  also  some  incorporeal 
hereditaments,  as  common  of  pasture,  piscary  and  turbary  or  the  free  pas- 
sage of  an  ancient  ferry  ;(,v)  so  also  herbage,  parks  and  warrens ;(«)  but 
tithes  seem  not  to  be  chargeable  except  by  special  custom. (^) 

In  some  cases  individuals  are  bound  to  re^aix  ratione  tcmtrx :  and  if  a 
man  be  so  bound  he  maj-  be  charged  alone  \[i(\  and  others  will  be  charged 
only  in  case  of  his  default  ;(a:)  and  if  a  jury  find  that  one  ought  to  repair  a 
bank,  &c.  which  is  decayed  by  the  sea,  and  it  be  removed  into  the  Q,.  B., 
the  justices  will  not  quash  the  inquisition  to  grant  a  new  trial,  unless  the 
party  found  guilty  first  repair  the  bank,  of  which  he  shall  be  reimbursed  -Jy) 
so,  a  man  may  be  bound  by  reason  of  frontage,  that  is,  where  a  man's  (ground 
fronts  the  sea  \{z^  so,  by  reason  of  being  owner  of  the  bank,  wall,  or  other 
defence  ;(«)  so,  by  prescription  or  custom  ;  but  in  the  presentment  mention 
must  be  made  that  he  is  to  do  the  same  thing  ratione  talis  messuagii,  &c., 
yet  in  the  case  of  a  corporation  this  is  not  necessary. (6) 

In  19  H.  7,  it  is  said  that  a  man  may  be  bound  ratione  resiantise,  but  this 
must  be  understood  in  respect  of  the  house  he  inhabits  ;(/A  a  man  may  also 
be  bound  by  his  covenant  ;(r)  so  also  by  reason  of  using  a  thing,  as  a  man  is 
bound  to  repair  a  river  by  reason  of  his  making  use  of  it ;((/)  so,  it  seems 
that  townships  may  in  particular  cases  be  subject  to  *a  separate  ^,„q-| 
assessment  ;(e)  but  in  all  cases  where  parties  are  assessed  to  repair,  L  -' 
it  must  appear  that  the  party  so  assessed  will  be  benefited  ;(f\  and  so  in 
respect  of  a  township  ;(i^)  and  therefore  where  the  level  of  a  party's  drains 
are  so  much  above  the  drains  falling  into  the  great  sewer,  that  the  stopping 
of  the  sewer  cannot  possibl}^  throw  back  the  water,  so  as  injure  his  premises, 

(n)  Dore  v.  Gray,  2  T.  R.  358. 

{(i)  See  further  C'ullis  on  Sewers;  Com.  T)ig.  tit.  Sewers  ;  Woolrych  on  the  Law  of 
Waters;  and  Dig.  P.  iii.  tit.  Sewers.  (/))  Callis,  131). 

(7)  Netherton  v.  Ward,  3  B.  &  A.  21.         (;)  Callis,  139. 
(s)  Callis,  137,  citinjr  37  Ass.  pi   10.  {t)  Callis,  131. 

(M)  8  H.  7,  5  ;  Keig'hiey's  case,  10  Co.  139. 

(j:)  Swanlcy  v.  Lime  (Corp.)  5  Bing.  91.  (ij)  Sid.  701. 

{z}  37  Ass.  pi.  10  ;  8  H.  7. 

(«)  lb.    And  see  R.  v.  Essex,  (Comm.  Sew.,)  1  B.  &.  C,  477. 
(/;)  Keilw.  52;  Callis,  116. 

(c)  Callis,  118;  March.  198.     Sec  also  Devonshire  (Earl")  v.  Gibbons,  Hardw.  169. 
(</)  37  Ass.  pi.  10;  Callis,  121.  (,■)  Callis,  122. 

(  f)  Case  or  the  Isle  of  Ely,  10  Co.  142  ;  Ansclm  v.  Barnard,  2  Keb.  G75. 
ig)  R.  V.  Wright,  2  Keb.  42. 


100 


CRABB    S     V  A  iV     OF     REAL     PROPERTY. 


he  cannot  be  assessed, (A)' and  a  decree  by  the  commissioners  is  not  conclu- 
sive against  th>?  party  assessed. (i) 

The  vvhoJc  level  will  be  charged  it  lands  bound  bj'-  tenure,  &c.  are  them- 
selves overflwvn  by  the  sea  ;  'or  V/h-ere  no  persons  are  known  who  are  bound 
by  tenur(5  or  otherwise  ;  or  the  party  so  bound  is  unable,  or  in  cases  of 
extraorifihary  swelling  iides  or  floods. (A:) 


[*124]., 


*CHAPTER    III. 
INCORPOREAL  HEREDITAMENTS. 


Sect.  I. 

§   115,  Of  incorporeal  heredita- 
ments IN  GENERAL. 

Sect.  II. 
117.  Advowson. 

Sect.  III. 
133.  Tithes. 

Sect.  IV. 
149.  Rents. 

Sect.  V. 
259,  Annuities  and  rent-charges. 

Sect.  VI. 
268.  Right  of  common. 


Sect.  VII. 
§  360.  Right  of  way. 

Sect.  VIII. 
398.   Water  and  water-courses. 

Sect.  IX. 
444,  Right  to  light  and  air. 

Sect.  X. 
481.  Right  to  pews  and  other 

easements. 

Sect.  XI. 
529.  Offices. 

Sect.  XII. 
598.  Dignities. 


Sect.  XIIT. 
623.  Franchises. 


SECTION  I. 


OF  incorporeal  hereditaments  in  general. 


§  115.  What   is  an  incorporeal  heredita- 
ment. 
In  JJender. 
In  PrcndtT, 
Profits  i\  prendre. 
Easement,  what  it  is. 


§  115.  Different  kinds  of  Easements. 
116.  Appendancy  and  Appurtcnaiicy. 

What  necessary   to   make    Append- 

aney  or  Appurtenancy, 
Exceptions  to  the  Rule. 


§  1 15.  An  incorporeal  hereditament  is  a  right  issuing  out  of  a  thing  corpo- 

{h)  Masters  v.  Scrogjrs,  3  M.  &  S.  447. 

(i)   Stafford  V.  Hamston,  5  J.  B.  Moore,  608 ;  S.  C.  2  B.  5^  B.  691. 

(k)  Dy.  33  ;  Keighley's  case,  sup.,  Cullis,  145. 


INCORPOREAL  HEREDITAMENTS,  101 

rate  (whether  real  or  personal,)  or  *concerning,  or  annexed  to,  or  p^igc-i 
exercisable  within  the  same.(o)  It  may  be  a  right  issuing  out  of  L  J 
the  land  or  other  thing  belonging  to  the  owner,  which  is  said  to  be  in  render, 
as  rent,  toll  or  other  franchise,  or  it  may  issue  out  of  the  land  or  other 
thing  belonging  to  another,  as  common,  &c.,  when  it  is  said  to  be  in  pren- 
der.{b) 

These  latter  rights  may  again  be  distinguished  into  rights  coupled  with  a 
profit  which  are  called  profits  a  prendre,  or  rights  without  any  profit  which 
are  called  easements.  A  right  to  take  something  out  of  the  soil  of  another  is 
a  profit  «  prendre,  as  the  right  of  common,  and  also  some  minor  rights  as  a 
right  to  take  drifted  sand,  or  a  liberty  to  fish,  fowl,  hunt,  hawk,  &c.,  see  Dig. 
P.  iii.  tit.  Prescription,  also  further,  post,  §  498. 

An  easement  is  a  privilege  without  a  profit,  as  a  right  of  way,  and  rights 
connected  with  water,  (see  ante,  §  398),  light  and  air,  (see  further,  post, 
§  444,  et  seq.),  besides  some  other  particular  rights  of  this  kind,  as  a  right 
to  support  from  a  neighbouring  wall.(c)  Such  rights  may  be  further  dis- 
tinguished into  easements  to  be  exercised  on  the  land  of  another,  as  to  pass 
over  his  land ;  or  such  as  prevent  a  person  from  using  his  own  land  to  the 
prejudice  of  his  neighbour's  easement,  as  where  he  may  not  dig  away  the 
support  which  his  neighbour  has  a  right  to  for  the  upholding  his  houses  or 
land.(rf)  As  to  the  rights  connected  with  trees  growing  on  adjoining  lands 
see  ante,  §  96. 

Incorporeal  hereditaments  not  being  visible  property,  capable  of  actual 
corporeal  occupation,  are  held  not  to  be  within  the  43  El.  for  the  relief  of 
the  poor,  and  consequently  not  rateable,  (see  Dig.  P.  iii.  tit.  Poor) ;  and  the 
same  law  is  made  applicable  by  5  &  G  AV.  4,  c.  50,  to  the  highway  rates 
(lb.  tit.  Highways);  but  the  rule  is  not  extended  to  the  sewers  rate.  (See 
ante,  §  114.) 

*§  116.  To  incorporeal  hereditaments  are  incident  appcndency  r^^nfiT 
and  appurtenancy.  A  thing  appendant  is  that,  which  beyond  me-  •-  -' 
mory  has  belonged  to  another  thing  more  worthy;  appendants  are  there- 
fore ever  by  prescription ;  but  a  thing  appurtenant  may  be  created  at  this 
day,  as  if  a  man  at  this  day  grant  to  another  and  his  heirs  common  in  such 
a  moor  for  his  beasts  levant  and  couchant :  or  if  he  grant  to  another  com- 
mon of  estover  or  turbary  in  fee-simple,  to  bo  burnt  or  spent  within  the 
manor;  by  these  grants  these  commons  are  appurtenant  to  the  manor,  and 
shall  pass  with  the  grant  thereof  ;(e)  and  if  a  thing  which  may  be  append- 
ant or  appurtenant,  had  always  passed  Avilh  the  manor  to  which  it  belonged 
by  the  words  cumpertinentiis,  it  must  be  taken  to  be  appendant.(/)  But 
to  make  a  thing  appendant  or  appurtenant  it  must  agree  in  quality  and 
nature  with  the  thing  whereunto  it  is  appendant  or  appurtenant,  as  a  thing 
corporeal  eannot  properly  be  appendant  to  a  thing  corporeal,  nor  a  thing 
incorporeal  to  a  thing  incorporeal,  but  things  incorporeal  which  lie  in  grant, 
as  advowsons,  commons  and  the  like,  may  be  appendant  to  things  corporeal, 
as  a  manor,  house,  or  lands ;  or  things  corporeal  to  things  incorporeal,  as 

{a)  1  Inst.  19,  20 ;  3  Comm.  20.  (b)  Prcst.  Estates,  8,  9. 

(c)  Brown  v.  Windsor,  1  Cr.  &,  .T.  20. 

id)  StanscU  v.  Jolland,  1  Sclw.  N.  P.  435,  10(h  cd. ;  Wyatt  v.  Harrison,  3  B.  &  Ad.  871. 
(e)  Dy.  30  b;  1  Inst.  121,  b. ;  Doddcridge  on  Advowsons,  38. 
(/)  1  RoU.  Abr.  230,  1.27.  ^ 

*7 


103        crabb's  law  of  real  property. 

lands  to  an  office,  but  as  they  must  agree  in  nature  and  quality  common  of 
turbary  or  estovers  cannot  be  appendant  or  appurtenant  to  land,  but  to  a 
house  to  be  spent  there  ;{g)  so,  a  leet  that  is  temporal  cannot  be  appendant 
to  a  church  or  chapel  ;(/t)  so,  a  seat  in  a  church  cannot  be  claimed  by  pre- 
scription as  appendant  to  land,  but  to  a  house  ;  for  that  the  seat  belongs  to 
the  house  in  respect  of  the  inhabitancy  thereof;  and  therefore  although  the 
house  be  part  of  a  manor,  yet,  in  that  case,  the  seat  may  be  claimed  as 
appendant  to  the  house. (i) 

Another  requisite  to  make  a  thing  appendant  or  appurtenant  is  that  the 
^  principal  or  superior  thing  must  be  of  *perpetual  subsistence, there- 

L  -^  fore  if  an  advowson  be  appendant  to  a  manor,  it  is  in  truth  append- 
ant to  the  demesnes  of  a  manor  which  are  of  perpetual  subsistence,  and  not 
to  rents  or  services.  As  a  rule,  if  a  thing  appendant  be  once  severed,  it 
shall  never  afterwards  be  appendant  ;(A:)  but  to  this  rule  there  are  excep- 
tions, see  infra,  §  118. 

The  rule  that  things  incorporeal  cannot  be  appendant  or  appurtenant  to 
things  incorporeal  admits  of  some  exceptions,  for  return  of  writs  or  a  leet 
may  be  appurtenant  to  a  hundred;  so  may  waif  and  stray  be  appurtenant 
to  a  leet,  and  yet  these  things  are  both  intorporeal,(Z)  and  it  seems  rather  to 
depend  upon  whether  the  things  are  capable  of  union  without  any  incon- 
gruity, (m) 

The  principal  incorporeal  hereditaments  entitled  to  distinct  consideration 
are — l.Advowsons;  2,  Tithes;  3.  Rents;  4.  Annuities;  5.  Right  of  Com- 
mon; 6.  Right  of  Way;  7.  Right  to  Water  and  Watercourses;  8.  Right 
to  Liffht  and  Air;  9.  Right  to  Pews  and  other  Easements;  10.  Offices; 
11.  Dignities;  12.  Franchises. 


SECTION  II. 

ADVOWSONS. 

I.  "Nature  anti  iDvopcrtfes  of  S[1)\)oto.5on«. 

§  117.  Definition  of  an  Advowson.  |    §  118.  Advowson  Appendant. 

118.  In  gross. 

11.  33iffcvtnt  UfiiTJS  of  SCtibotosons. 

119.  Presentative,  |       119.  Collative. 

119.  Donative. 

III.  IJvcscutntfoii. 
1.   Wherein  it  consists. 


120.  Presentation   distinguished   from 
Nomination. 


1:20.  Appointment  of  Curates. 
Curates  to  Chapels  of  Ease. 


ig)  5  Ass.  9  ;  1  Inst.  121,  b. ;  1  Sid.  354. 

(h)  10  E.  3,  5;  Tirringham's  case,  4  Co.  36.  (/)  1  Inst.  ]29,  b. 

(yt)  2  Mod.  2;  2  T.  R.  41-5. 

(J)  Hargr.  Co.  Litt.  121,  b,  citing  8  H.  7,  1,  2,  3 ;  Rast.  Entr.  128. 

(m)  lb.     Sec  also  1  Vent,  18G. 


ADVOWSONS.  103 

*2.  How  to  be  made.  [*128] 

[§  121,  Must  be  by  Deed.  |    §  121.  Time  of  Presentation. 

3.   By  whom  to  be  made. 


122.   By  the  very  Patron, 
Guardian,  Infant. 
P'enie  Covert. 
Ilcir,  Executor. 
Copareeners. 
Composition  to  present  in  turn. 


122.  By  Tenant  in  Dower. 
(wporations. 
Pajjists. 
Presentation  by  Lapse. 
Presentation  by  the  Queen, 


4.  Incidents  to  Presentation. 

123.  Admission.  |      123.  Institution. 

123.  Induction. 

5.   When  Presentation  may  be  revoked. 

124,  By  the  Queen,  |      124.  By  a  common  Person. 

6.   When  void  or  voidable. 
125.  In  case  of  Deprivation. 

IV.  CRrant  of  an  Sltiboiuson. 

1.  Hoiv  it  passes. 

126.  Under  what  Words.  |      126.  When  it  is  Appendant. 

126.  Advowson  in  gross. 

2.   Grant  of  the  next  Avoidance. 


127.  When  the  next  Presentation  does 
not  pass. 


127.  When  pureliase  of  next  Presentation 
is  simoniacal. 


127.  What  next  Avoidance  will  pass, 

3.   Grant  by  the  Crown. 
128.  Difference  between  Grants  by  the  128.   In  the  case  of  an  Advowson  Ap- 


Crown  and  a  Subject. 


pendant. 


1'28.  In  the  case  of  a  void  Turn. 
V.  ^[pijropifatfou  an^i  Kmpro^prfatfou. 

1.  Appropriation. 

129.  Definition.  I      129.  Vicarage  by  Endowment. 

Vicar  and  Perpetual  Curate.  |  Disapprobation. 

2.  Impropnation. 

130.  Appropriation  and  Impropriation  distinguished. 

*VI.  Jtncflicul.'S  to  an  SltiboiDsoit.  [*129] 


^  131.  Advowson  a  valuable  Thing. 
When  not  a  Matter  of  Profit. 
Estates  in  an  Advowson. 

Curtesy. 

Dower. 


§  132.  Convcj'ance  of  an  Advowson. 

Alienation  by  Tenant  in  Tail  or  for 

Life. 
By  Tenant  for  Years. 


104  crabb's   law   of   real   property. 

§  117.  An  advovvson  may  be  considered  as  to — 1.  The  nature  of  an 
advowson  in  general;  2.  The  different  kinds  of  advowsons  ;  3.  Presenta- 
tion and  impropriation  ;  6.  Incidents  to  an  advowson  ;  7.  How  an  advowson 
may  be  lost  or  suspended,  (see  post,  Title  to  Things  Real;)  8.  Injuries 
affecting  an  advowson,  (see  post.  Injuries  to  Things  Real.) 


flaturc  of  an  SItriJotoson  in  general. 

An  advowson  is  a  right  of  patronage  to  a  church  or  benefice ;  the  person 
to  whom  the  right  of  presentation  belongs  is  called  the  patron,  originally  the 
advocatus,  because  the  founder  of  every  church  was  also  the  maintainor  and 
protector  thereof,  and  advocatio  signified  not  only  the  superintending  care 
bestowed  on  all  the  temporal  concerns  of  the  church,  but  also  the  right 
which  flowed  out  of  the  same,  whence  is  derived  the  word  "advowson." 
The  rights  and  interests  of  the  patron  are  recognised  as  well  in  the  Statute 
as  in  the  Common  Law,  and  accordingly  the  consent  of  the  patron  is  required 
on  many  occasions,  as  by  the  17  G.  3,  c.  53,  for  mortgaging  the  glebe,  &c., 
in  order  to  provide  a  residence  for  the  incumbent ;  by  the  42  G.  3,  c.  116, 
as  to  the  redemption  of  the  land-tax  b)'^  the  incumbent;  by  the  4  &  5  W. 
4,  c.  30,  as  to  the  exchange  of  common  fields,  where  the  incumbent  is 
interested;  by  the  0&  7  W.  4,  c.  115,  as  to  the  inclosure  of  common 
fields  ;  and  also  by  the  Church  Building  Act,  see  Dig.  P.  i.  ii.  tit.  Benefices, 
Churches,  Commons,  Exchanges. 

*iim  *118.  An  advowson  may  either  be  appendant  or  ingross,  see  ante, 
L  J  §  116.  An  advowson  is  said  to  be  appendant  to  a  manor,  when  it 
has  been  so  annexed  to  it  as  to  be  parcel  thereto  and  passed  by  a  grant  of 
the  manor  cum  pertinentiis ;{n)  but  when  the  properly  of  the  advowson  is 
separated  from  the  manor  or  other  thing  it  is  said  to  be  in  gross. (o) 

It  maj'-  be  made  in  gross  three  several  ways,  as  if  a  man  grant  a  manor 
Avithout  the  advowson  ;  or  the  advowson  itself  be  conveyed  away  ;  or  if  the 
owner  of  an  advowson  presents  to  it,  as  if  it  w^ere  in  gross. (/)) 

An  advowson  may  be  appendant  to  so  many  acres  of  land,  or  to  one 
acre;((7)  or  the  advowson  of  a  vicarage  may  be  appendant  to  a  rectory  ;(r) 
so,  an  advowson  may  be  appendant  for  a  part,  and  in  gross  for  another 
part  ;(.s)  and  although  as  a  rule  an  advowson  once  severed  cannot  be  again 
appendant,  yet  an  advowson  may  be  appendant  for  one  turn  and  in  gross  for 
the  other  ;(/)  and  if  co-parceners  make  partition  of  a  manor  and  the  advowson 
is  allotted  to  one,  then  it  becomes  in  gross  ;  but  if  the  co-parcener  to  whom 
it  was  allotted  dies  without  issue,  and  without  disposing  of  the  advowson,  it 
will  go  to  the  other  sister,  and  again  become  appendant  ;(m)  so  an  advowson 
may  become  again  appendant,  when  the  act  which  made  it  in  gross  was 
avoided,  as  where  an  advowson  was  mortgaged,  whereby  it  became  in  gross, 
and  it  was  afterwards  redeemed,  then  it  became  again  appendant  ;(t')  so,  on 

(n)  33  II.  G,  4,  b.  (o)  1  Inst.  120. 

(p)  Dy.  103;  Perk,  sect,  104  ;  1  Roll.  Abr.  2.32. 

(7)  Roll.  Abr.  23.  (»)  Dy.  350  b. ;  Moor,  894.  (s)  Dy.  78. 

(t)  1  Inst.  122,  a.  (m)  Finch's  case,  6  Co.  61,  a. 

(P)  R.  V.  Chester  (Bishop,)  3  Salk.  401. 


PRESENTATION.  105 

a  recovery  after  a  usurpation  ;{w)  so,  if  it  be  expected  out  of  a  lease  for  life 
of  a  manor,  it  becomes  in  gross  durinp-  the  continuance  of  the  lease,  but  upon 
its  expiration  it  becomes  again  appendant.(ic) 


*ii.  JBiffcrrnt  Ui'ntis  of  ^tii)o\usons.  [*i3i] 

119.  An  advowson  is  either  presentative,  collative  or  donative.  An 
advowson  presentative  is  when  the  patron  presents  the  parson  to  the  ordi- 
nary to  be  instituted  and  inducted  in  the  church,(^)  as  to  presentation  see 
infra,  §  120. 

An  advowson  collative  is  that  which  is  given  absolutely  by  the  bishop.- 
Collation  is,  in  the  case  of  a  bishop  where  he  has  the  sole  right,  what  insti- 
tution is  in  the  case  of  an  advowson  presentative.  No  possession  is  gained 
by  a  collation  against  the  Q,ueen.(z) 

An  advoAvson  donative  is  where  the  patron  puts  the  clerk  in  possession 
without  any  presentation  to  the  ordinary,  such  livings  being  privileged  and 
exempt  from  the  jurisdistion  of  the  bishop,  and  visitable  by  the  patron 
only. (a)  In  this  case,  the  party  is  in  full  possession  immediately  on  his 
nomination,  and  may  maintain  an  action  for  money  had  and  received  against 
any  person  who  takes  the  profits. (i) 

If  the  patron  of  a  donative  once  present  to  the  ordinary,  and  his  clerk  is 
admitted  and  instituted,  it  is  said  that  the  avowson  is  now  become  presenta- 
tive, and  shall  never  be  after  donative,  1  Inst.  x.  344,  a.,  sed  contra  Ladd  v. 
Widdows,  2  Salk.  541  ;  where  it  was  held,  that  though  a  presentation  might 
destroy  an  impropriation,  it  could  not  destroy  a  donative,  because  the  crea- 
tion thereof  was  by  letters-patent.  As  to  donatives  under  1  G.  1,  c.  10,  see 
Dig.  P.  ii.  tit.  Benefice,  Church. 


III.  33rcsfntatiou. 

120.  A  right  of  patronage  is  principally  exercised  by  the  act  of  presenting 
a  clerk.     This  subject   may  therefore  be  considered  under  the  following 
heads  : — 1.  Wherein  it  *consists  ;  2.  How  and  when  to  be  made;  pstioo-i 
3.  By  whom  to  be  made ;  4.  Incidents  to  presentation ;  5.  When  L 
it  may  be  revoked ;  6.  When  void  or  voidable. 

1.  Wherein  presentation  consists. 

Presentation  is  a  known  term  in  law,  and  signifies  the  offering  a  clerk  to 
the  bishop  to  be  admitted  and  instituted.  It  is  distinguished  from  nomina- 
tion, which  is  the  ofl^ering  a  clerk  to  the  patron  ;  and  these  two  things  may 
be  in  different  persons,  thus  trustees  may  have  the  right  of  presentation,  and 
the  cestui  que  trust  must  nominate  ;(c)  so,  the  mortgagee  has  the  right  to 

(m)  Hob.  140.  (x)  Finch's  case,  sup.  (y)  2  Comm.  22. 

(i)  R.  V.  York,  (Bishop)  1  Leon.  226.  ('»)  Sulliv.  Lcct.  viii.  (^h)  1  T.  R.  403. 

(c)  Seymour  v.  Bcnnet,  2  Atk.  462 ;  Botcler  v.  Allington,  3  Atk.  458 ;  Att.-Gcn.  v. 
Scott,  1  Vcs.  415  ;  Mutter  v.  Chauvel,  1  Mcr.  493. 


106  crabb's   law   of  real   property. 

nominate  ;(f/)  so,  a  person  may  grant  to  another  and  his  heirs,  that  when- 
ever the  church  becomes  vacant  he  will  present  such  person  as  grantee  may 
nominate,  "and  this  is  a  good  grant ;"(«)  and  the  nomination  is  the  effect  of 
the  advowson,  and  he  who  has  it  is  the  patron ;  and  the  person  who  is  to 
present  is  the  subject  or  servant  to  execute  ;(y"j  but  where  the  nomina- 
tion and  presentation  is  in  different  persons,  the  presenter  is  to  judge  of  tlie 
qualifications  of  the  nominee  in  the  same  manner  as  the  bishop  does.(§') 

By  the  6  G.  4,  c.  16,  the  assignees  of  a  bankrupt,  and  by  the  1  «fe  2  V. 
c.  110,  the  assignees  of  an  insolvent,  must  present  the  person  nominated  by 
the  bankrupt  and  insolvent.  See  Dig.  P.  ii.  iii.  til.  Bankrupt  and  Insolvent 
Debtors. 

The  appointment  of  a  curate  to  officiate  under  an  incumbent  in  his  own 
church,  must  be  by  such  incumbent's  nomination  of  him  to  the  bishop. (A) 
The  appointment  of  a  curate  to  a  chapel  of  ease  belongs  properly  to  the 
incumbent  of  the  mother  church,  who  being  instituted  to  the  cure  of  souls 
P^,„„-|  *throughout  the  whole  parish  may  therefore  himself  serve  in  the 
L  -^  chapel  as  well  as  his  curate  or  chaplain, (t)  unless  it  be  in  the  case 
of  chapels  augmented  by  the  governors  of  Glueen  Anne's  Bounty.  See 
Dig.  P.  i.  ii.  tit.  Augmentation,  Benefice.  But  by  agreement  of  the  bishop, 
patron  and  incumbent  the  inhabitants  may  have  a  right  to  elect  and  nomi- 
nate a  curate  ;(Ar)  if  there  be  an  agreement  it  must  be  by  deed  ;(/)  but  there 
may  be  a  prescription,  in  which  every  thing  is  presumed  to  be  proper. (/) 

2.  How  and  within  what  Time  to  be  made. 

121.  Presentation  must  he  to  a  void  benefice  ;(m)  but  there  may  be  a 
presentation  to  a  deanery,  archdeaconry,  or  prebend, (n)  though  not  to  a 
donative,  see  ante,  §  119. 

Before  the  Statute  of  Frauds  a  presentation  might  be  made  by  parol,  and 
if  it  were  by  writing  it  was  not  necessary  to  be  by  deed,  being  in  the  nature 
of  a  letter  of  recommendation  of  the  clerk  to  the  bishop  ;(o)  but  now  if  it  be 
a  common  person  he  must  shew  how  the  presentation  is  made,  for  a  presen- 
tation conveys  an  interest  in  lands  and  tenements ;(/?)  so,  it  is  said  that 
the  queen  may  present  by  parol  if  the  bishop  be  present ;(/))  the  usual 
way  however  is  to  make  a  presentation  by  instrument  under  the  Great 
Seal.(*7) 

Regularly  the  presentation  by  the  queen  ought  to  shew  by  what  title  she 
presents,  for  if  she  mistake  her  title,  as  if  she  presents  rntione  lapsus,  when 
she  is  very  patron,  she  is  deceived,  and  her  presentation  is  void  ;(r)  other- 
wise if  she  present  generally,  without  saying  by  what  title. (s) 

(d)  Amhurst  v.  Dawlinp,  1  Vcrn.  401  ;  Gardiner  v.  Griffith,  2  P.  Wms.  404  ;  Mackenzie 
V.  Robinson,  3  Atk.  559  ;  Croft  v.  Powell,  Com.  609.  {e)  Moore,  49. 

(/)  Hare  v.  BicUley,  Plowii.  5-29  ;  Calvert  v.  Kitchen,  Lane,  72. 
(«■)  R.  V.  Stafford,  (Marq.)  6  T.  R.  646.  (h)  2  Burn's  E.  Law,  55  f;  Phill.ed. 

(i)  Hob.  67  ;  2  Vcs.  427. 

(k)  Herbert  v.  Westminster,  (Dean,  «fec.)  1  P.  Wms.  773. 
(l)  Dixon  V.  Kershaw,  Amb.  528.  (/n)  Owen  v.  Stainol,  Skinn.  45. 

(n)  2  Roll.  Abr  342;  1  And.  24L  («)  1  Inst.  120,  a. 

Ip)  1  Brownl.  162.  ('/)  Cro.  Jac.  248. 

(r)  Green's  case  6  Co.  29  ;  Cro.  Car.  99. 592 ;  Vaugh.  14. 
(s)  R.  V.  Thorncborough,  1  Mod.  254. 


Presentation.  107 

Every  common  person  ought  to  present  within  six  months  after  the  avoid- 
ance of  the  church  by  the  death  of  the  *incumbent  ;(^)  otherwise  the  r*,.;}^-] 
presentation  lapses  to  the  bishop,  even  although  the  patron  presents,  •-  -' 
if  his  clerk  is  refused  ;(«)  so,  if  the  church  becomes  void  by  statute,  as  by 
acceptance  of  a  plurality  •,[x)  and  the  six  months  shall  be  reckoned  by  the 
calendar ;(?/)  but  if  the  avoidance  be  by  resignation  or  deprivation  the  six 
months  do  not  commence  until  notice  of  the  avoidance  given  by  the  ordinary 
to  the  patron  ;[z)  so,  though  the  temporalities  are  in  the  queen's  hands,  for 
the  guardian  of  the  spirituaUties  ought  to  give  notice. (a) 

3.  By  whom  to  be  made. 

122.  A  presentation  ought  regularly  to  be  made  by  the  very  patron,  and 
if  not,  the  nominee  of  the  patron  must  be  presented,  see  ante,  §  120.  By 
common  right  the  parson,  and  not  the  patron  of  the  parsonage,  shall  be  the 
patron  of  the  vicarage  ;(&)  so  by  common  right,  the  bishop  is  patron  of  all 
his  prebends. (c)  As  to  who  may  present,  it  will  be  necessary  to  consider 
presentation  by  guardian  or  infant,  feme  covert  or  husband,  heir  or  executor, 
co.parcener  or  tenants  in  common,  tenant  in  dower,  and  papists  ;  by  lapse, 
and  by  the  queen. 

Guardian  by  nurture  or  socage  of  a  manor  whereunto  an  advowson  is 
appendant  shall  not  present  to  a  church,  because  he  can  take  nothing  for 
the  presentation  for  which  he  may  account  to  the  heir,  and  therefore  the 
heir,  although  an  infant  shall  present. (c?) 

A  feme  covert  cannot  present  alone,  bvit  the  presentation  must  be  by 
husband  and  wife  ;(e)  and  although  the  right  of  *patronage  descends  ^^  „_-, 
to  the  heir  of  the  wife,  yet  the  right  of  presenting  during  life  belongs  L  -1 
to  the  husband,  who  is  tenant  by  the  curtesy,(/)  see  further  infra,  as  the 
co-parceners. 

As  to  when  the  heir  and  when  the  executor  may  present,  see  ante,  §  9. 
If  co-parceners  agree,  they  are  to  join  in  the  act  of  presentation,  other- 
wise the  eldest  shall  have  the  preference,  and  afterwards  the  restjn  turns, (g-) 
the  court  will  direct  them  to  draw  lots,  who  shall  have  the  presentation  ;(/t) 
but  when  the  right  is  in  joint  tenants  or  tenants  in  common,  and  there  is  no 
composition  in  writing  to  present  by  turns,  they  must  of  necessity  join  in 
the  presentation,  for  if  they  present  singly,  the  bishop  may  refuse  the 
clerk. (i) 

A  composition  to  present  in  turn  may  be  either  by  record,  or  deed,  or 
parol.  A  composition  by  parol  however  can  only  be  between  privies  in 
blood  ;(A:)  between  strangers  it  must  be  by  deed.(A')     Where  an  advowson 

(«)  3  Leon.  4G;  2  Roll.  Abr.  363,  1.  25.  (v)  Dy.  337  b. 

{X)  Dy.  237  a. ;  4  Inst.  632  ;  W.  Jo.  338  ;  R.  v.  Canterbury  (Archb.)  Cro.  Car.  357. 

(y)  Dy.  327,  in  marg.  (2)  Green's  case,  sup. 

(«)  2  Roll.  Abr.  365;i.  2R. 

(b)  2  Roll.  Abr.  336,  1.  12.  25.  But  see,  contra,  as  to  parson  impropriate,  Mallet  v. 
Trigg-,  1  Vern.  42.  (c ,  3  Co.  75  b. 

(d)  3  Inst.  156;  Arthington  v.  Coverley,  2  Eq.  Ca.  Ab.  518;  Hearle  v.  Greenbank,  3 
Atk.  710;  Sherrard  v.  Lord  Hardborough,  Amb.  105;  Kensey  v.  Langham,  Cas.  temp. 
Talb.  143  ;  and  see  Cro.  Jac.  99.  (e)  Gibs.  794 ;  Wats.  CI.  L.  c.  9. 

(  /■)  Harris  v.  Nichols,  Cro.  EI.  19.  (g)  1  Inst.  18,  b. ;  Gibs.  794. 

(/ii  Seymour  v.  Bennett,  2  Atk.  482.  (i)  1  Inst.  18,  b. 

(A)  Salisbury  (Bp.)  v.  Phillips,  1  Salk.  43  ;  S.  C.  Carth.  505 ;   12  Mod.  321. 


i 


lOd  crabb's    law    of    real    property. 

is  held  in  common,  and  the  rota  of  presentation  is  not  expressly  settled,  the 
first  and  peaceable  presentations  are  evidence  of  composition  between  the 
parties ;(/)  and  prerogative  presentations  are  not  turns  to  deprive  a  patron  of 
his  turn.(/) 

If  two  sisters,  co-parceners,  present  jointlj^  then  marry  and  settle  their 
estates  and  die  ;  the  husband  of  the  eldest,  tenant  by  the  curtes}',  shall 
present  first,  as  assignee,  for  the  grantees  of  parceners  have  the  same 
privileges  as  parceners  themselves  ;(m)  so,  if  two  parceners  assign  their 
part  of  an  advowson  severally. (n)  If  upon  a  presentation  the  church  be  full, 
the  turn  is  served,  and  if  an  incumbent  be  deprived  quia  mere  laicus,  for 
-,  the  church  was  full  till  the  declaratory  *sentence  ;(o)  but  if  the  pre- 
L         -J  sentation  be  wholly  void,  it  shall  not  serve  the  turn.(o) 

If  a  man  seised  of  an  advowson  die,  leaving  a  widow,  the  heir  shall  have 
two  presentations,  and  the  widow  the  third  as  her  dower,  and  she  may 
recover  the  same  in  an  action,  or  it  may  be  assigned  to  her.(/)) 

When  a  corporation  presents,  it  must  be  under  their  common  seal,  and 
by  the  true  name  of  their  corporation, ((7) 

Papists  are  by  several  statutes  prevented  from  presenting  to  benefices, 
see  Dig.  P.  i.  tit.  Papists. 

If  a  patron  does  not  present  within  six  months  after  avoidance,  the  church 
lapses  to  the  bishop  ;(r)  and  it  will  incur,  from  the  time  of  institution  into  a 
second  benefice,  against  the  patron,  if  notice  be  given  him,  otherwise  not ;(») 
the  lapse  occurs,  though  the  patron  be  an  infant. (/) 

If  the  bishop  does  not  present,  the  church  lapses  to  the  archbishop  ;(m) 
if  the  archbishop  does  not  present,  then  it  lapses  to  the  queen  ;  or  to  her 
successor  ;(t')  and  no  lapse  incurs  where  the  queen  is  patron,  although  she 
does  not  present  within  the  six  months  ;  but  if  the  queen  does  not  present, 
the  ordinary  may  have  the  church  served  ;(j')  so,  after  a  lapse,  if  the  patron 
presents  before  the  bishop  or  archbishop  collates,  his  clerk  shall  be  institut- 
ed ;(</)  so,  after  a  lapse  to  the  queen,  if  she  do  not  take  advantage  thereof(z) 
and  sequester  the  profits,  (a) 

P=j(,  07-1  *The  queen  is  patron  paramount  of  all  the  benefices  in  England, 
L  -I  in  virtue  of  which,  the  care  of  filling  all  such  churches  as  are  not 
regularly  filled,  devolves  to  the  crown. (6)  If  the  queen  be  seised  of  an 
advowson,  in  which  the  church  exceeds  the  value  of  20  marks,  she  herself 
shall  present  ;(c)  but  to  a  church  of  the  Crown,  under  that  value,  the  chan- 
cellor shall  present. (c) 

If  an  archbishop  or  bishop  dies,  and  while  the  temporalities  are  in  the 

(Z)  Grocers'  Co.  v.  Canterbury  (Archbp.,)  2  Bl.  770 ;  S.  C.  3  Wils.  214.  221. 

(m)  Bullcr  v.  Exeter  (Bp.,)  1  Vez.  340.  (n)  Harris  v.  Nichols,  sup. 

(0)  5  Co.  102;  2  Roll.  Abr.  347,  1.  35. 

(/))  Dy.  35,  b. ;  1  Inst.  351  ;  Wats.  CI.  L.  89. 

(g)  Ayray  v.  Lovelas,  Bulstr.  91  ;  sed  contra.  Dean  and  Chapter  of  Norwich's  case,  3 
Co.  73.     Aiid  see  Stafford  (3Iayor,  &e.i  v.  Bolton,  1  B.  &  C.  40. 

(r)  2  Inst.  273.  (S)  Wolfcrstan  v.  Lincoln  'Bp.,")  2  Wils.  174. 

(<)  3  Leon.  4fi.  («)  Booton  v.  Rochester  (Bp.,)  Ilutt.24  ;  Wats.  c.  15. 

(c)  R.  V.  Canterbury  fArclib.,"*  Cro.  Car.  355  ;  W.  Jo.  337.  (x)  2  Inst  273. 

(y)  Hob.  152  ;  Booton  v.  Rochester  (Bp.,)  Hntt.  24  ;  2  Inst.  273. 

(z)  Ow.  2;  1  Mod.  224.  But  see  R.  v.  Mnroln  (Bp.,)  Cro.  EI.  119  ;  Cumber  v.  Chi- 
Chester  (Bp.,)  Cro.  .Tac.  21  r, ;  2  Roll.  Abr.  368 ;  Beverley  v.  Canterbury  (Archbp.,)  Ow.  3. 

(a)  Doct.  .V  Stud.  36.  219.  (ft)  Gibs.  763. 

(c)  38E.3,  3,b. ;  Hob.  214. 


PRESENTATION.  109 

queen's  hands  a  church  in  his  patronage  becomes  vacant,  she  shall  pre- 
sent ;(rf)  so,  if  the  incumbent  be  created  a  bishop,  by  which  a  church  be- 
comes void,  though  a  subject  be  patron,  the  queen  shall  present  ;(e)  but 
when  the  incumbent  of  a  donative  is  made  a  bishop  she  shall  not  present. (y) 

If  a  person  be  outlawed  the  queen  shall  present,  but  if  the  outlawry  be 
reversed,  then  the  patron  shall  present  ;(g-)  so,  if  the  queen  do  not  present 
on  the  next  avoidance,  she  shall  not  present  afterwards  ;[h)  but  if  her  clerk 
dies  before  induction,  she  shall  present  de  novo  ;{i\  and  this  prerogative  takes 
away  the  right  of  none,  onl^'  postpones  the  right  ;  therefore  the  royal  pre- 
rogative of  presenting  to  a  church,  vacant  by  the  incumbent  being  promoted 
to  a  bishopric,  does  not  destroy  the  effect  of  a  prior  grant  of  the  next  pre- 
sentation by  the  owner  of  the  advo\vson.(A-) 

So,  where  one  has  the  nomination  and  another  the  presentation,  if  such 
right  of  presentation  accrues  to  the  queen,  this  shall  not  be  to  the  prejudice 
of  him  that  has  the  nomination,  but  he  may  still  nominate  to  the  chancellor  ; 
and  if  the  queen  presents  without  any  such  nomination,  the  nominator  shall 
bring  his  suit  against  the  incumbent  only,  because  the  queen  cannot  be  term- 
ed a  usurper.(/j 

*4.  Incidenis  to  Presentation.  r*138  ] 

123.  The  ceremonies  connected  with  presentation  are  admission,  institu- 
tion, and  induction. 

Admission,  in  its  ordinary  and  limited  sense,  is  taken  for  the  act  of  the 
bishop,  who,  on  approval  of  the  presentee,  after  examination,  declares  him 
fit  to  serve  the  cure  of  the  church,  to  which  he  is  presented  by  the  words 
admit  to  te  habilcm.{in^ 

Institution  is  a  conveyance  or  commitment  of  the  cure  of  souls  from  the 
bishop  to  the  incumbent  by  the  words  Inslituo  te  ad  tale  benejjciwn,  habere 
curam  animarum,  et  accipe  curam  tuam  et  mearn.(n')  The  bishop  may 
institute  under  the  episcopal  or  any  other  seal,  as  well  out  of  his  diocese  as 
within  it ;  for  the  matter  is  not  local,  but  follows  the  person  wherever  the 
bishop  goes.(o) 

By  admission  and  institution  a  church  is  full  against  a  common  person, 
but  not  against  the  queen  before  induction  ;(^)  so  there  is  no  seisin  or  pos- 
session of  the  church  before  induction  ;(/?)  hxxx.  an  incumbent,  even  on  a 
wrongful  presentation,  who  remains  six  months  in  possession  after  institu- 
tion, cannot  be  removed. (*/)  A  church  being  full  by  institution,  if  a  second 
institution  is  granted  to  the  same  church,  this  is  called  a  superinstitution, 
which  is  triable  in  the  Ecclesiastical  Court  before  induction. (5)     When  the 

ill)  Bro.  Present.  10.  13  ;  2  Roll.  Abr.  341,  1.  21. 

(<-)  Went'.vorth  v.  Wright,  Cro.  E!.  526 ;  S.  C,  nom.  Wright's  case,  Ow.  144 ;  Moor, 
399.  (/■)  Ca.  Pari.  184.  {g)  Id.  13J, 

(//)  Cro.  El.  790.  (J)  Giles's  case,  Cro.  Jac.  403. 

{k)  Calland  v.  Trower,  2  H.  Bl.  324.  See  also  Grocers'  Co.  v.  Canterbury  CArchbp.^  3 
Wils.  231.  (/)  Dodd.  on  Advow.,  Lect.  12,  6.1. 

(«i)  Colt  V.  Coventry  (Bp.),  Hob.  153;  1  Inst.  334,  a;  Britton  v.  Ward,  2  Roll.  Rep. 
100;   Wrightson  v.  Brown,  3  Lev.  211  ;  Wats.  Incunib, 

(;/)   1  Inst.  344,  a;   Digby's  case,  4  Co.  79. 

(o)  Cort  V.  St.  D,ivid'.s  (Bp.),  Cro.  Car.  311  ;  Deggcs,  P.  C.  P.  J.  ch.  2,  7. 

ip)  Hire  V.  Bickley,  Plowd.  528  ;  BosweFs  case,  6  Co.  49. 

(7)  Boswel's  case,  sup. ;  2  Inst.  358. 

July,  184G.— 8 


110        crabb's  law  of  real  property. 

ordinary  is  also  the  patron  and  confers  the  living,  presentation  and  institu- 
tion are  one  and  the  same  thing. (/•)  As  to  the  remedy  in  case  the  ordinary 
refuses  institution,  see  post,  Injuries  to  Things  Real. 
r*iQQl  Induction  is  the  investiture  of  the  temporal  part  of  the  *benefice 
L  -'or  the  corporeal  seisin,  as  institution  is  of  the  spiritual,  and  the  clerk 
is  not  complete  incumbent  until  such  corporeal  possession  ;  and  no  lapse 
incurs  from  the  time  of  the  institution,  but  from  the  lime  of  the  induction, 
for  it  is  the  induction  into  a  second  benefice  that  vacates  the  first,  and  not 
the  institution  to  it  ;(s)  so,  if  a  bishop  malces  admission  and  institution  to  his 
clerk,  and  dies,  and  the  temporalities  come  into  the  queen's  hands  before  in- 
duction, the  queen  shall  have  the  presentation. (/)  Without  induction,  the 
clerk  is  not  parson,  for  by  this  he  becomes  seised  of  the  temporalities  of  the 
church,  so  as  to  have  power  to  grant  them  or  sue  for  them,  and  on  this  ac- 
count it  is  compared  to  livery  and  seisin,  by  which  possession  is  givento 
temporal  estates  ;  and  what  induction  works  in  parochial  cures  is  effected, 
by  installation  into  dignities,  prebends  and  the  like,  in  cathedral  churches. (?<) 
Induction  is  an  act  of  a  temporal  nature  and  on  that  account  cognisable 
only  in  the  temporal  courts. (a:^)  But  see  further,  post.  Injuries  to  Things 
Real  ;  as  to  the  requisiiies  after  induction,  see  Dig.  P.  ii.  tit.  Clergy. 

5.  frjien  Presentation  may  be  revoked. 

124.  The  queen  may  revoke  her  presentation  at  any  time  before  induc- 
tion, notwithstanding  letters  obtained  for  admission^  institution  and  induc- 
tion ;(2/)  so,  there  may  be  a  revocation  in  law  as  in  fact,  as  where  the  pre- 
sentee of  the  queen  dies  before  induction,  this  is  a  revocation  in  law  ;(2)  so, 
where  the  queen  presents  her  clerk,  and  dies  before  he  is  admitted ;(«)  so, 
if  the  chancellor  presents  to  a  benefice,  supposing  it  to  be  under  value  and 

*i  <m  ^^^  queen  being  ^apprized  of  it,  repeals  the  presentation,  and  pre- 
L  J  sents  one  in  her  own  name,  this  is  a  good  repeal,  because  the  queen 
has  a  right  precedent. (^) 

It  was  formerly  thought  that  none  but  the  queen  could  revoke, (c)  but  the 
contrary  appears  to  be  now  the  settled  doctrine. (f/) 

6.  When  void  or  voidable. 

125,  The  clerk  of  a  co-parcener  being  once  complete  incumbent,  the  turn 
is  served,  although  he  is  afterwards  deprived  ;  thus  where  the  institution  is 
voidable  by  sentence  declaratory,  as  the  church  is  full  until  the  sentence  is 
declared,  the  turn  is  gone.(c)     But   if,  after  presentation,  institution,  and 

(r)  See  ante,  §  119. 

(,s)  Woirersfiin  v.  I,incoln  (Bp.),  2  Wils.  174;  S.  C.  in  error,  nom.  Lincoln  (Bp.)  v. 
Wolfcrstan,  3  Burr.  1510.  (t)  Hare  v.  Bicldey,  piip. 

(w)  Dy.  2-21  b  ;  Plowcl.  528  ;  2  Roll.  Rep.  451.  (a;)  Hob.  15  ;  Gibs.  815. 

iy)  1  Inst.  344,  b;  2  Roll.  Abr.  35.3. 

(?)  Gyles  V.  Colshil,  Dy.  360  b;  Shcffiekl  v.Ratcliffc,Hob.  339  ;  F.  N.  B.  34  ;  Ilulchins 
T.  Glover,  Cro.  Jac.  4U3  ;  Wright  v.  Norwich  (Bp.),  1  Leon.  156. 

(„)  Godolph.2fi6. 

(6)  Bedingfic/d  v.  Canterbury  (Archbishop),  Dy.  292;  Walrond  v.  Pollard,  Dy.  293; 
i»reen's  case,  6  Co.  29. 

(r)  Stoke  v.  Sykes,  Latch.  191  ;  Rogers  v.  Holled,  2  Bl.  1039. 

((]}  lb.     See  also  Att.-Gen.  v.  Wycliffe,  1  Vez.  80.  (e)  Windsor's  case,  5  Co.  102. 


ADVOWSON.  Ill 

induction,  the  church  remains  actually  void,  as  where  the  presentee  does 
not  read  the  articles,  there  the  turn  is  not  served,  but  the  presentor  may- 
present  again  without  sentence  of  deprivation. (y)  As  to  Title  to  Things 
Real  and  Injuries  to  Things  Real,  see  further,  post,  under  those  titles. 


IV.  ©^rant  oC  an  ^tjijctoson. 

126.  Under  this  head  it  will  be  necessary  to  consider  1.  How  an  advow- 
son  passes  under  a  grant ;  2.  Grant  of  the  next  avoidance  by  the  queen  ;  3. 
Grant  by  the  Crown. 

1.  Hoiv  it  passes. 

An  advowson,  if  appendant,  being  an  incident,  will  pass  with  its  principal, 
as  a  manor  or  other  corporeal  thing  to  which  it  is  annexed,  and  therefore  it 
Avill  pass  by  the  grant  of  a  manor  under  the  words  cum  pertinentiis  ;[g)  but 
a  *demise  for  years  of  a  manor,  cum  perlinentiis,  will  not  pass  an  p^i^i-i 
advowson  to  a  lessee,  for  a  spiritual  benefice  cannot  be  granted  for  ■-  -' 
years  or  at  will  \{li\  so,  a  grant  by  a  person  of  ecclesia  sua  passes  an  advow- 
son ;(«)  or  of  all  his  tenements  and  hereditaments  ;(A-)  but  it  will  not  pass  by 
the  word  "  lands  ;"(/)  so,  the  advowson  of  a  vicarge  with  all  commodities, 
emoluments  and  appurtenances,  without  the  word  "  hereditaments"  will  not 
pass  an  advowson  ;(m)  but  it  is  not  necessary  for  the  word  "advowson"  to 
be  expressed,  so  as  words  equivalent  be  used.(?i) 

An  advowson  in  gross  being  an  incorporeal  hereditament  passes  only  by 
grant  by  deed  and  not  by  livery  ;(o)  but  as  to  livery  see  7  &  8  V.  c.  76. 
Prec.  Conv.,  Append.  No.  XVIII. 

2.   Grant  of  the  next  Avoidance. 

127.  As  the  right  of  patronage  in  an  advowson  may  pass  by  the  grant  of 
the  patron,  so  the  right  of  presenting  to  an  avoidance  or  any  number  of 
avoidances  may  be  the  subject  of  a  grant  ;(/j)  but  an  actual  vacancy  cannot 
be  granted  ;(«/)  therefore  if  an  advowson  be  sold  during  a  vacancy,  the  next 
presentation  does  not  pass,(r)  although  the  grant  of  the  advowson  itself  is 
valid  ;(s)  so,  if  a  presentation  be  made  by  usurpation,  and  the  benefice  be 
sold  in  the  mean  time,  the  case  is  the  same  because  the  church  was  never 

(  f)  Baker  v.  Brent,  Cro.  EL  679  ;  Windsor  v.  Canterbury  (Arclibp.),  Cro.  El.  687  ;  S. 
C,  Moore,  558.  (^g)  1  Inst.  307,  a  ;  Slampe  v.  Clinton,  1  Roll.  Rep.  100. 

(A)  Case  of  Femes  (Dean,  &c.),  Dav.  45  ;  Wats.  CI.  L.  c.  15. 

(i)  Ashegfcll  v.  Dennis,  1  Leon.  11)1. 

(A-)  Dy.  323  b  ;  Hob.  304  ;  Perk.  Grants,  s.  1 1  6  ;  2  Roll.  185, 1.  .30. 

ll)  Savil  V.  Savil,  Fort.  351  ;  Westfaling  v.  Westialing-,  3  Atk.  4G0:  see  also  Robinson 
V.  Tonfrc,  3  P.  Wnis.  401  ;  S.  C,  3  B.  P.  C.  556  ;  Kynaston  v.  Clarke,  2  Atk.  206  ;  Albe- 
marle (Earl)  V.  Roarers,  2  Ves.  jun.  477. 

(/«)  Anon.,  Cro.  El.  163;  Anon.  Dy.  351 ;  WestMin^  v.  Westfalincr,  sup. 

(n)  Smitli  V.  Stapleton,  Plowd.  435  ;  F.  N.  B.  33  ;  Wats.  CI.  L.  c.  30. 

(o)  1  Inst.  17,  a.,  3.32,  a. 

(/j)  Throckmorton  v.  Tr.-.cy,  Plowd.  150  ;  Crisp's  case,  Cro.  El.  164  ;  1  Inst.  241,  a. 

Iq)  Stephens  v.  Wall,  Dy.  282.         (r)  T,eake  v.  Coventry  (Bp.,)  1  Cro.  El.  8,  11. 

(s)  Greenwood  v.  London  (Bp.,)  3  Burr.  1510. 


113  crabb's   law  of  real   property. 

r*l49"l  ^"^^  of  that  clerk,  and  that  would  be  an  evasion  of  the  *law  ;(/)  so, 
L  -^  it  seems  to  be  the  general  opinion  that  if  a  person  purchases  the 
next  aA'oidance  with  intent  to  present  a  particular  person,  and  the  church 
becomes  void,  and  the  party  is  presented,  this  is  simony  ;(?<)  and  if  the 
church  be  purchased  with  intent  to  present  a  son,  it  gppears  that  it  makes 
no  difference. (a.')  Where,  however,  a  church  is  void  and  a  grant  of  the  next 
avoidance  is  made,  the  grant  will  pass  a  future  avoidance,  although  not  the 
next  immediate  presentation  ;(?/)  so,  if  two  persons  possess  the  grant  of  the 
next  avoidance, ^nd  after  the  church  has  become  void,  one  of  them  relin- 
quish his  right  to  the  other,  nothing  will  pass  by  the  release,  and  they  must 
both  join  in  the  presentation  as  before  ;(^)  sed  seciis  if  the  release  had  been 
before  the  avoidance. (o) 

If  a  person  grants  the  next  presentation  to  one,  and  afterwards  grants  the 
next  presentation  to  a  second,  the  second  grant  is  void,  and  the  grantee 
shall  not  have  the  second  presentation  ;(6)  unless  the  first  grantee  proceeds 
on  a  simoniacal  contract,  and  the  queen  afterwards  presents  on  her  title  of 
simony,  then  the  second  grantee  may  present  when  the  church  is  void  of 
the  queen's  incumbent. (c) 

A  next  avoidance  being  but  a  chattel  interest,  the  grant  must  be  to  the 
grantee  and  his  executors,  but  if  it  be  to  the  grantee  and  his  heirs  the  execu- 
tors will  have  it  ;(</)  this  is  however  to  be  understood  of  presentative  bene- 
fices, for  in  a  donative  such  void  turn  descends  to  the  heir,(e) 

-.  *By  the  12  A.  st.  2,  c.  12,  grants  of  the  next  avoidance  to  clergy- 
L  -^  men  are  declared  simoniacal  and  void,  see  Dig.  P.  ii.  tit.  Advowson  ; 
P.  iii.  Presentation. 

3.   Grant  hy  the  Crown. 

128.  Grants  by  the  Crown  differ  from  those  by  the  subject  in  two  particu- 
lars : — First,  the  grant  of  a  manor  by  a  subject  passes  an  advowson  that  is 
appendant,  see  ante,  §  126  ;  but  it  is  otherwise  in  the  case  of  royal  grants, 
where  an  advowson  will  not  pass  except  it  be  expressly  named,  and  that  by 
virtue  of  the  Statute  de  Prserogativa  regis,  see  Dig.  P.  ii.  tit.  Advowson  ; 
and  so  it  has  been  adjudged  in  several  cases  ;(/)  but  some  cases  have  been 
deemed  not  within  the  reason  of  the  statute,  such  as  the  Crown's  restitution 
of  lands  to  the  heirs  of  idiots,  or  of  the  temporalities  of  bishops  ;(»•)  so,  woids 
of  reference  have   been   deemed  sufficient  as  when  the   king   granted  a 

(t)  Walker  v.  Hammersley,  Skinn.  90.  (»)  Kifchcn  v.  Calvert,  Lane,  102. 

(x;  Wiiicoinbc  v.  Piileston,  Nov,  29  :  Anon.  Godbolt,  3!)0  ;  but  see  as  to  this  latter  point 
Smith  V.  Shclborne,  Moor,  916  ;'S.  C.  Cro.  El.  685;  VVinchcombe  v.  Winchester  (Bp,) 
Hob.  165. 

(y)  Anon.,  1  Dy.  20  a.;  Agard  v.  Peterborough  (Bp.,)  2  Dy.  129  ;  S.C.  1  And.  15;  Ste- 
phens  V.  Clark,  Moor,  89  ;  Brokesby  v.  Wickham,  1  Leon.  l67  ;  Baker  v.  Rosrers,  Cro.  Car. 
173;  VVolferstan  v.  Lineoln  (Bp.,)  2  Wils.  174  ;  S.  C,  in  eiror,  3  Burr.  1504  ;  S.  C,  1 
Blackst.  490. 

(«)  Brokesby  v.  Lincoln  (Bo.,^  1  And.  223.  («)  Lewis  v.  Bcnnet,  Moor,  467. 

\h)  Williams  v.  Lincoln,  (Bp.,)  Cro.  El.  790. 

(c)  Winchcombc  v.  Winchester  (Bp.,)  Hob.  165 ;  Wats.  CI.  L.  c.  10. 

{(1)  Anon.,  Dy.  26  a.  (r)  1  Inst.  90,  a. 

(/)  Willionv.  Berkley,  Plowd.  243;  Stukeley  v.  Butler,  Hob.  170;  Whistler's  case, 
10  Co.  64. 

(^)  Staundf.  Prasrog.,  43,  a. ;  Dodder.  Advows.  36. 


ADVOWSON.  113 

manor  with  all  its  appurtenances,  as  the  same  came  to  or  were  possessed  by 
the  Crown. (/i) 

In  the  next  place,  although  the  grant  by  a  subject  of  a  void  turn  is  void, 
yet  such  grant  by  the  Crown  is  good  ;(i)  but  if  during  the  avoidance  the 
queen  grant  a  manor  to  which  an  advowson  is  appendant,  with  all  advow- 
sons  appendant  thereto,  the  void  turn  will  not  pass  by  these  words. (A:)  A 
right  of  presentation  however,  accruing  to  the  queen  by  lapse  is  not  grant- 
able  either  before  or  after  its  fall  ;(/j  where  therefore  the  queen  has  two  titles 
to  the  same  church,  one  as  patron  and  the  other  by  lapse,  and  she  grants  the 
advowson  generally,  the  grantee  will  not  be  entitled  to  the  void  presentation. (wi) 


*v.  ^pproprtatCoii  mxXt  );mpropricitron.  [*i44] 

1 .  Mpprop rlalloti. 

§129.  Appropriation  of  an  advowson  was,  when  the  church,  with  the 
tithes,  glebe,  &c.,  was  appropriated  to  the  perpetual  use  of  some  corporation, 
religious  or  ecclesiastical,  regularl}'^  it  was  made  to  a  sole  corporation  which 
performed  divine  service  ;(n)  but  sometimes  to  a  dean  and  chapter. (o)  In 
all  cases  the  sufficient  endowment  of  a  vicar  was  a  necessary  condition  of 
appropriating  a  benefice,  and  without  such  an  endowment  the  appropriation 
was  not  good. (/J)  Where  the  vicarage  is  not  endowed  the  impropriator  of 
the  small  tithes  is  bound  to  maintain  a  priest,  and  upon  information  by  the 
Attorney-General,  the  dueen  may  assign  such  allowance  as  she  thinks  pro- 
per.(5')  Such  a  minister  is  called  a  perpetual  curate  ;  between  whom  and  a 
vicar  there  is  this  difference,  that  the  latter  is  in  for  life,  and  the  former,  as 
it  is  said,  at  will  only.(r)  A  vicar  is  usually  endowed,  but  a  curate  never,(s) 
except  since  Q,ueen  Anne's  Bounty,  (see  Dig.  P.  i.  tit.  Augmentation;)  so, 
where  there  is  a  curate  the  parson  is  incumbent,  but  where  there  is  a  vicar, 
the  vicar  is  incumbent. (n 

A  vicarage  by  indowment  becomes  a  benefice  distinct  from  the  parsonage  ; 
and  as  a  vicar  is  now  enabled  to  recover  his  temporal  rights  without  the  aid 
of  parson  or  patron,  so  he  has  the  whole  cure  of  souls  transferred  to  him  by 
the  institution  of  the  bishop. (?/)  The  parson,  by  making  the  endowment, 
acquires  the  patronage  of  the  vicarage,  and  if  the  parson  makes  a  lease  of 
the  parsonage  without  reserving  *to  himself  the  right  of  presenting  i-ski^ki 
to  the  vicarage,  the  patronage  of  the  vicarage  passes  as  incident  L  -■ 
to  it. (a:) 

(A)  Whistler's  case,  sup. 

(0  Dy.  980,  300 ;  Gvorge  v.  Dalfon,  3  Leon.  196  ;  S.  C.  Gouldsb.  73 ;  Ow.  53. 

(A)  Case  of  Hedniinstcr  .Manor,  Dy.300,  a.;  Fane's  case,  Cro.  Jac.,  26;  George  v.  Dalton, 
sup. ;  but  see  contra,  F.  N.  B.,  33,  18,  and  Dy.  2S2. 

(I)  Colt  and  Glover's  case,  Hob.  154.  (m)  Dv.  348  ;  2  Roll.  Abr.  196. 

(n)  Plovvd.  496.  (")   lb. ;  Parry  v.  Banck?.,  Cro.  Jac.  518  ;   1  Roll.  Ahr.  238. 

(/))  Grf  ndon  v.  Lincoln  (Bp.,)  Plowd.  496  ;  Colt  v.  Coventry  (Bp.,   140  ;  Suld.  c.  12,  s.  1. 

iq)  Bonsey  v.  Lee,  1  Vern.  247.  (r)  Bunb.  234. 

(s)  Bunb.  273.  (I)  Barn,  E.  L.  tit.  Appropriation,  Phill.ed. 

{«)  Britton  and  Wade's  case,  1  Sid.  426;  Gibs.  7J9. 

(x)  Shirley  v.  Uuderliill,  2  Roll.  Rep.  304;  Di.xon  v.  Kershaw,  Ambl.  32J  ;  and  see 
Portland  (Dake)  v.  Bingham,  1  Consist.  162. 


114  crabb's    law    of    real    property. 

There  were  no  vicarages  at  common  law,  and  therefore  no  tithes  or  profits 
dejure  belong  to  the  vicar  only  by  endowment  and  prescription. (3/) 

An  advoAvson  will  be  disappropriated,  if  the  body  to  which  it  is  annexed 
is  dissolved  ;(;r)  so,  if  a  presentation  be  made  to  the  church,  it  becomes  ever 
after  presentable,  (a) 

2.  Improprlalion. 

130.  Although  appropriations  were  regularljr  made  to  spiritual  persons 
only,  yet  many  grants  of  parsonages  were  made  to  the  Crown  by  laymen, 
particularly  in  the  reign  of  Hen.  8,  and  that  which  was  an  appropriation  in 
the  hands  of  spiritual  persons  is  usually  and  properly  called  an  impropria- 
tion in  the  hands  of  a  layman  ;  and  by  the  statutes  for  dissolving  religious 
houses  the  rectory  tithes,  &c.  impropriate  come  to  the  hands  of  lay  persons 
are  temporal  inheritances, (6)  transferable  as  any  other  species  of  property, 
and  for  which  the  same  actions  may  be  brought. (c) 

Before  the  Reformation,  if  the  benefice  was  given  ad  menscnn  monacho- 
rum  and  so  not  appropriated  in  the  common  form,  but  granted  by  way  of 
union  pleno  jure,  in  that  case  it  was  served  by  a  temporary  or  stipendiary 
curate,  belonging  to  their  own  house,  and  sent  out  as  occasion  required  ; 
but  when  such  appropriations  with  the  charge  of  providing  for  the  cure 
were  transferred  (after  the  dissolution  of  the  religious  houses)  from  spiritual 
societies  to  lay  individuals,  who  were  not  capable  of  serving  them  by  them- 
selves, they  were  consequently  obliged  to  nominate  some  particular  person 
r-i4fin  ^°  '^^  ordinary  for  his  license  to  serve  the  cure:  which  gave  *rise 
L  -'to  perpetual  curacies,  as  they  are  noAA''  termed,  the  person  so 
licensed  not  being  removable  at  the  pleasure  of  the  impropriator,  nor  in  any 
other  manner  except  by  due  revocation  of  the  license  of  the  ordinary  ;(</) 
but  it  has  been  held  that  land  annexed  to  a  perpetual  curacy  cannot  be 
leased  by  the  curate  so  as  to  bind  the  successor,  without  the  consent  of  the 
ordinary  and  patron. (e)  As  to  the  union  of  churches,  see  Dig.  ii.  tit. 
Churches. 


VI.  Kntiticnts  to  an  ^tfi)oU)]t>ou. 

131.  The  most  important  incidents  to  an  advowson  are  what  regards 
estates  in  an  advowson,  and  conveyances  of  such  estates. 

An  advowson  or  the  general  right  of  presentation  was  held  to  be  a 
valuable  thing  which  might  be  sold  and  its  annual  value  estimated  ;(f)  but 
the  exercise  of  this  right  is  deemed  a  matter  of  trust,(^)  and  therefore  an 
advowson  will  not  pass  under  the  name  of  "  commodities,  emoluments,  profits, 
and  advantages  ;"(/*)  and  on  the  same  principle  the  next  immediate  pre- 
sentation cannot  be  sold  ;(i)  and  on  the  same  principle  bonds  given  to  resign 

(;/)  Biitton  and  Ward's  case,  Palm.  113.  (z)  Plowd.  501. 

(a)  Plowd.  SU11. ;  1  Roll.  Abr.  210.  (h)  Inst.  150,  a. ;  W.  Jo.  3. 

(c)  Baldwin  v.  Wine,  Cro.  Car.  301.  ('/)  Gibs.  819  ;  and  sec  1  Consist.  165. 

(r)  Dno  V.  Thomas,  9  Ad.  vt.  Ell.  556  ;  1  Per.  &  Dav.  578. 

(/)  Flcta,  1,  3,  f.  71  ;   Hritt.  1S5.  <e)  l^arrett  v.  Gliibb,  9  Bl.  1052. 

(A)  London  [Bp.)  v.  Soutlivvcl  (Chapter,  &,c.)  Hob.  3Q3.  (i)  See  ante,  ^  127. 


INCIDENTS    TO    AN    ADVOWSON.  115 

any  benefice  upon  the  request  of  the  patron,  whether  general  or  special,  were 
held  invalid,  until  the  9  Geo.  4,  c.  94,  made  special  bonds  of  resignation  in 
favour  of  a  son  or  other  near  relative  valid  under  particular  restrictions  ;(_/) 
so,  on  the  same  principle,  of  an  advowson,  wherein  a  man  has  an  absolute 
ownership  as  he  has  in  lands  and  rents,  he  shall  not  plead  that  he  is  seised 
in  his  demesne  as  of  fee,  because  that  inheritance  savouring  not  de  d^rao, 
cannot  serve  for  the  sustentation  of  him  or  his  ^household  ;(A-)  sed  r*!^-.-] 
secus  as  to  the  Crown  ;(/)  and  in  a  writ  of  a  writ  of  right  of  advovv-  ^  -* 
son  [before  3  &  4  W.  4,  c.  27, (m)]  a  man  should  not  allege  the  esplees  or 
taking  the  profit  in  himself  ;(/i)  so,  on  the  same  principle,  guardian  in  socage 
cannot  present,  see  Dig.  iii.  tit.  Guardian  and  Infant. 

An  advowson  being  an  incorporeal  hereditament  presentation  to  a  church 
is  the  only  seisin. 

A  person  may  have  the  same  estate  in  an  advowson,  both  in  respect  of 
quality  and  quantilj*-,  as  in  any  other  real  possession  ;  so,  there  may  be  an 
equitable  owner  of  an  advowson,  as  cestui  que  trusf,  or  purchaser  before 
conveyance,  but  the  trustee  or  mortgagee  will  have  thejbare  right  of  presen- 
ation  and  not  of  nomination,  o) 

There  may  be  curtesy  of  an  advowson,  but  before  the  late  Dower  Act, 
(see  Dig.  ii.  tit.  Dower,)  if  the  advowson  were  appendant,  and  the  wife  died 
before  entry  into  the  manor,  the  husband  could  not  present  because  he  had 
no  seisin  ;(/>)  but  it  seems  to  have  been  otherwise  where  the  advowson  was 
in  gross. (</) 

There  may  also  be  a  tenant  in  dower  of  an  advowson  ;  and  if  a  widow  is 
endowed  of  a  third  part  of  a  manor  to  which  an  advowson  is  appendant,  the 
third  part  of  the  advowson  shall  pass  therewith  ;(r)  and  if  the  estate  of  the 
husband  consists  of  three  manors  appendant,  the  common-law  right  of  dower 
is  as  it  seems  the  third  presentation  to  each  advowson. (s)  If  the  advowson 
be  in  gross,  the  assignment  of  dower  must  be  of  the  third  presentation. (^) 

The  descent  ofadvowsons  followed  the  rules  of  the  *common  law  p*j^Q-i 
or  of  custom  as   the  descent  of  other  property,  except  so   far  as  L 
regarded  \.\\q  possessio  frulris^iti)  the  law  respecting  which  is  now  altered  ; 
(see  Dig.  P.   iii.  tit.   Inheritance  ;)  so  also  as  to  presentation  by  co-par- 
ceners, (vC) 

But  in  donatives  the  right  of  donation  descends  to  the  heir-at-law,  where 
a  vacancy  has  occurred  in  the  lifetime  of  the  ancestor,  because  there  is  no 
lapse  in  donatives,  and  the  executor  has  no  title,  as  he  would  have  in  pre- 
senlative  advowsons.('y) 

So  an  advowson  was  held  to  be  assets  by  descent,  and  before  the  3  &  4 

( ;■)  See  Preccd.  in  Convey,  tit.  Donds,  3d  ed. 

{k)  7  E.  3,  63  ;  24  E.  374;  1  Inst.  17,  a. 

(Z)  34  H.  6,  34  ;  but  see  26  E.  3,  64 ;  Plowd.  503. 

{in)  See  T)'v^.  P.  iii  tit.  Limitations. 

(rt)  8  E.  2,  Pres.  al.  En^L,  10  ;  Bract.  1.  4,  f  ,1.  263  ;  Fleta,  1.  .'5,  c.  5. 

(o)  Clecr  V.  Peacock,  Cro.  El.  351);  Aniliurst  v.  Dowling,  2  Vcrn.  401;  GarfUnor  v. 
Griftith,  2  P.  Wms.  404;  Wcstlaling  v.  Westtalla<r,  3  Atk.  453  ;  Galley  v.  Salby,  1  Str. 
333.  (/')  Inst.  29,  a. 

(^y)  Hargr.  Co.  Litt.  23,  a.,  n.  (5.)  (r)  Dy.  35;  1  Inst.  351. 

(s)  1  Inst.  30,  b. 

(0  Howard  v.  Cavendish,  Cro.  Jac.  621  ;  oiling  13  E.  2,  Dower,  161  ;  11  E.  3,  Id. 
80.  (")  1  Inst.  14,  b.  (x)  Ante,  §  13?. 

(y)  1  Inst.  90,  a.,  n.  4  ;  Repington  v.  Tamworth  School  (Governor,)  2  Wils.  153,  &c. 


116  crabb's  law    of    real   property. 

W.  4,  c.  104,  makins:  all  real  property  assets  for  the  payment  of  dtbts,  was 
adjudged  to  be  such  and  ordered  to  be  sold  for  that  purpose, (z) 

132.  An  advowson  in  gross  may  be  transferred  by  every  species  of  con- 
veyance applicable  to  the  transfer  of  real  incorporeal  property,  according  to 
the  nature  of  ihe  owner's  estate  therein. («)  There  are,  however,  some 
diversities  arising  from  the  different  kinds  of  advowsons,  and  the  nature  of 
the  property  in  them.  As  an  advowson  must  pass  by  grant,  a  conveyance 
by  the  deed  of  the  tenant  in  tail  would  not  before  the  7  &  8  V.  c.  76,(6)  have 
worked  a  discontinuance,  therefore  if  tenant  in  tail  of  a  manor,  whereunto 
an  advowson  was  appendant,  made  a  feofTment  with  or  without  deed,  of 
one  acre  with  the  advowson,  and  the  church  becantie  void  and  the  feoffee 
presented,  and  then  the  tenant  in  tail  died,  and  the  church  became  void,  the 
issue  should  not  present,  until  he  had  continued  the  acre,  but  if  the  feoffee 
had  not  executed  the  same  by  presentation  then  the  issue  in  tail  should  have 
presented  ;(c)  and  an  advowson  appendant  underwent  before  the  6  &  7  V. 
^  -,  c.  *76,(f/),  aU  the  consequences  of  a  discontinuance  of  the  principal, 
L  J  but  an  advowson  in  gross  could  not  be  discontinued  because  discon- 
tinuance could  arise  only  in  things  Avhich  might  pass  by  livery  ;(€)  so, 
where  there  is  a  remitter  to  a  manor  there  will  be  remitter  to  an  advowson 
which  is  appendant  thereto. 

Again,  a  grantor  can  alien  an  advowson  for  so  long  a  period  only  as  his 
estate  or  interest  continues  therein,  therefore  if  a  tenant  in  tail  or  for  life 
grants  the  next  avoidance  and  dies  before  the  avoidance  takes  place,  the 
grant  is  void  as  against  the  issue  in  the  one  case,(/)  and  as  against  the 
remainder-man  in  the  other  ;(o-)  and  the  case  is  the  same  although  the  heir 
of  tenant  in  tail  joins  in  the  grant,  it  shall  nevertheless  be  void  as  agninst 
him,  because  he  had  nothing  in  the  advowson,  either  in  possession  or  right, 
or  actual  possibility  at  the  time  of  the  grant  ;(A)  but  where  a  grantor  pos- 
sessed of  a  term  of  years  in  a  rectory,  to  which  the  advoWson  of  a  vicarage 
was  appendant,  granted  the  next  avoidance  and  then  died,  it  was  held  that 
the  estate  of  the  grantee  was  not  defeasible  by  surrender  of  the  term  by  the 
grantor's  administrator,  but  that  he  should  have  the  next  avoidance,  for 
otherwise  the  grantor  would  derogate  from  his  own  grant.(t)  See  further 
as  to  the  grant  of  the  next  avoidance,  ante,  §  127.  As  to  when  a  church 
becomes  void,  &c.,  see  post,  Titlk  to  Things  Real  and  Injuries  to 
Things  Real. 

(2)  Tongro  V.  Bohinson,  1  P.  Wm.  301  ;  S.  C,  in  error,  1  B.  P.  C.  114. 

(tf )  Sic  ante,  §  1-^G.  (/')  P<'c  Prcc.  Conv.,  Append.  No.  xviii.,  3rd  cd. 

(c)  Brcdon's  case,  1  Co.  76 ;  1  Ins.  333,  b. ;  1  Roll.  Abr.  632. 

((/)  Prcc.  Conv.  Append.  No.  xviii. 

(e)  1  Inst.  332,  a      But  sec  as  to  liverv,  7  &.  8  V.  c.  76,  sup. 

(/•)  Bowles  V.  Walter,  1  Roll.  Abr.  843. 

(jr)  Davenport's  case,  8  Co.  144;  D^imokc  v.  Hobart,  1  B.  P.  C.  108. 

(A)  Wivel's  case,  liob.  45.  (i)  Davenport's  case,  sup. 


TITHES. 


117 


*SECTION  III.  [*150] 

TITHES. 
§  133.  What  are  tithes. 

I.  Hature  anU  tiiffctent  Sfntjs  oE  Sftijcs. 
§  133.  Definition.  |  §  133.  Different  Kinds  of  Tithes, 

II.  EnciT!cnt.-i  to  gTitljcs. 


134.  Are  assets. 

Subject  to  Dower  and  Curtesy. 
Entailable. 


134.  How  conveyed. 

Pass  under  what  Words. 
Ratable. 


III.  Eo  toljoiu  I3uc. 


135.  To  the  Parson  of  common  right. 

Portionist. 

Vicar. 
133.  Payable  to  the  Crown. 


136.  Crantce  of  the  Crown. 
Lord  of  the  Manor. 
Lay  Impropriator. 


IV.  Bu  tuSom  p^igabk. 

137.  Persons  generally.  |  137.  Tenant  under  the  Tithes  Commutation  Acts. 

137.  Vendee  under  old  Law. 

V.  ®2Ul}at  EljfitQs  ave  titljablc. 

138.  Under  the  old  Law. 
138.  How  provided  for  under  the  Tithes  Commutation  Acts. 

VI.  Sctlins  out  auti  cavrBtus  aluai)  Sftljcs. 

139.  Old  Law. 

VII.  Hvcmptfoa  fvcm  E\t\)es. 


140.  Spiritual  persons  generally  exempt. 
Laymen  never  exempt  as  a  Rule. 
Exemptions. 


140.  Prescription. 

Real  Composition, 
By  Act  of  Parliament, 


VIII.  3LatD  ti  Cai-cs  anti  Bcut-djatQC.^-  unticv  tljc  JUitljcs  <*rommutatfon  SIcts. 

141.  Object  of  the  Acts. 

1.  Apportionment  of  the  Bent-charge. 

142.  Apportionment  in  respect  of  the  Land. 
143.  Apportionment  in  respect  of  the  Person  entitled  to  the  Rent-charge. 

*2.  Recovery  of  ths  Ft ent-charge.  [*I51] 

144.  Distress  for  Tithes. 

3.  Jiateahilify  of  Bent-charges. 

145.  As  in  regard  to  the  Tithes. 

4    Merger  of  Bent-charges. 
146.  When  applicable. 


118  crabb's   law   of   real   property. 

5.  Incidents  to  Tithes  and  Rent-charges, 

§  147.  Rent-charges  liable  to  the  same  Incidents. 

6.  Extent  of  the  Tithes  Comnwtation  Acts  as  to  Rent-charges. 

148.  Commutation  of  Land  for  Tithes.       |     148.  Commutation  of  Personal  Tithes. 

148.  Tithes  in  London. 


§  133.  Tithes  are  an  ecclesiastical  inheritance  collateral  to  the  estate  of 
the  land  and  due  only  to  an  ecclesiastical  person  by  ecclesiastical  law. 
They  may  be  considered  under  the  following  heads: — 1.  Nature  of  and 
incidents  to  tithes  ;  2.  To  whom  payable  ;  3.  By  whom  payable  or  other- 
wise ;  4.  What  things  titheable  or  otherwise ;  5.  Setting  out  tithes.  6. 
Exemptions  from  tithes  ;  7.  New  law  under  the  Tithes  Commutation  Acts. 


I.  Jlnture  of  anti  Jincttjents  to  gruUrs. 

Tithes  are  the  tenths  of  the  produce  of  the  ground  or  of  personal  indus- 
try, and  are  distinguished  into  prcedial,  personal,  or  mixt,and  again,  accord- 
\\\<r  to  their  value,  into  crreat  and  small.  Prxdial  tithes  are  such  as  arise 
immediately  from  the  ground,  as  grain  of  all  sorts,  hay,  wood  fruits,  and 
herbs.  Mixt  tithes  are  such  as  do  not  arise  immediately  from  the  ground, 
but  from  things  nourished  by  the  ground,  as  calves,  lambs,  chickens,  colts, 
milk,  cheese,  and  eggs.  Personal  tithes  are  such  as  arise  by  the  industry 
of  man,  being  the  tenth  part  of  the  clear  gain  after  charges  deducted;  and 

-_.^-,  these  are  in  some  j)laces  due  by  custom,  apd  *by  2  &  3  E.  6  are 
^  -^  given  permanently,  but  by  the  statute  day-labourers  are  excepted; 
so,  it  seems,  servants  of  the  plough  ;(/r)  so,  an  innkeeper  by  the  sale  of  wine 
and  becr;(A  so,  any  person  for  gain  made  by  money  put  out  at  interest,  or 
by  the  sale  of  a  house. (wi) 

Tithes  are  again  distinguished,  according  to  their  value,  into  great  and 
small:  great  tithes  are  tithes  of  wood,  corn,  or  hay  ;(?!)  so,  formerly,  other 
herbs  planted  in  large  quantities  ;  but  it  seems  now  to  be  settled  that  tithes 
are  great  or  small  according  to  the  nature  of  the  things,  and  not  according 
to  the  mode  of  cultivation,  or  the  uses  to  which  they  are  ap{)lied,  therefore 
the  tithe  of  beans  and  peas,  whether  sown  in  fields  or  gardens,  are  great 
tithes, (o)  and  potatoes  though  sown  in  large  quantities  are  small  tithes. (/)) 

134.  Tithes  which  came  to  the  Crown  by  the  statutes  of  dissolution,  and 
are  now  vested  in  lay  impropriators,  are  subject  to  all  the  laws  and  incidents 
of  other  freehold  property,  being  assets  for  the  pajanent  of  debts,  and  sub- 
ject to  dower  and  curtesy  ;{q')  so,  as  lay  fees  they  are  tenements  Avithin  the 
Statute  de  BoniSf^r'j  and  may  be  entailed  and  limited  to  the  heir;(s)  so,  by 

{k)  1  Roll.  Abr.  64  <?,  !.  25.  (/)  2  Bulst.  141.  (m)  1  Roll.  Abr.  656, 1.  ult. 

(n)  Cro.  Car.  28 ;  Hutt.  77  ;  Palm.  220.  (o)  Sims  v.  Bennett,  7  B.  P.  C.  2^. 

(  f>)  Smith  V.  Wyatt,  2  Atk.  364. 

(7)  Huhne  v.  Pardoc,  M'CkJ.  '3.)3;  S.  C,  3  E.  &  Y.  116.  (0  1  !"«*•  L^^^,  a. 

(s)  Cro.  Jac.  301 ;  1  Vent.  173 ;  R.  v.  Ellis,  3  Price,  323 ;  S.  C,  3  E.  &  Y.  781. 


TITHES,   TO    WHOMDUE.  119 

the  33  H.  8,  c.  7,  s.  7,  recoveries  and  fines  of  tithes  and  other  ecclesiastical 
possessions  which  were  in  lay  hands  might  be  sufiered  and  levied  in  the 
same  manner  as  of  lands  ;  but  tithes  must  have  been  named  to  pass  in  such 
assurances. (/) 

Being  incorporeal  hereditaments  they  pass  by  grant  only,  but  not  without 
deed  ;(z«)  and  they  cannot  be  granted  by  copy  unless  the  custom  permits  •,{v) 
so,  they  are  not  subject  *to  the  customary  modes  of  descent  as  to  p*jg3-| 
gavelkind  or  borough-English.(x')  ^ 

Tithes  of  which  a  man  is  seised  in  fee  may  be  devised  as  herediia- 
ments  ;{y)  but  not  under  the  word  "  lands,"(r)  unless  the  devise  cannot  be 
otherwise  interpreted  ;(a)  but  it  seems  not  to  be  settled  whether  tithes  would 
pass  under  a  devise  of  a  messuage  and  tenement,  "  and  all  the  profits  arising 
therefrom  at  D.  in  the  parish  of  B.;"(6)  but  the  word  "tenements"  in  a 
private  Act  of  Parliament  includes  tithes. (c) 

The  Will  Act,  7  W.  4  &  1  V.  c.  26,  includes  tithes;  (see  Dig.  P.  iii. 
tit.  Wills ;)  and  as  it  relates  to  all  real  property  will  necessarily  extend  to 
rent-charges  substituted  for  tithes  under  the  Tithe  Commutation  Acts. 

Tithes  are  the  only  incorporeal  hereditaments  made  liable  to  the  poor- 
rates  by  the  43  El.  (See  Dig.  P.  iii.  tit.  Poor.)  So,  a  sum  of  money  given 
under  an  Inclosure  Act  to  a  rector  or  vicar,  in  lieu  of  tithes,  which  are  rate- 
able, is  equally  rateable  :{d)  and  a  vicar  is  liable  to  poor-rates  for  his  tithe  ;(c) 
so,  they  are  liable  to  the  payment  of  fruit ;(/)  but  the  common  law  relieves 
ecclesiastical  persons  from  toll,  murage,  and  pontage, (^)  though  not,  as  it 
seems,  from  the  sewers'  rate.(/i)  Tithes  are  expressly  enumerated  among 
the  real  property  liable  to  the  land-tax  in  38  G.  3,  c.  5. 

*By  the  Tithe  Commutation  Act,  6  &  7  W.  4,  c.  71,  the  rent-  p^jg^-i 
charo-e  substituted  for  tithes  is  made  liable  to  the  same  rates  as  the  L 
tithes  have  been. 


III.  ^0  toliom  true, 

135.  Tithes  of  common  right  belong  to  the  parson  of  that  church  w^ithin 
the  precincts  of  whose  parish  they  arise,(e)  the  limits  of  which  are  to  be 
ascertained  by   reputation ,(^■)    or   by   the   unresisted  claims  of  parochial 

(/)  Gibson  V.  Clarke,  1  Jac.  &  W.  159 ;  3  E.  &  Y.  946. 

(u)  Chavc  V.  Cahiiel,  3  Burr.  1873.  (f)  Hoe  v.  Taj^lor,  Moor,  3dj. 

(x)  Doe  V.  Llandaff,2  N.  R.  491  ;  S.  C.  2  E.  &  Y.  557. 

(w)  Ritch  V.  Sanders,  Sty.  261  :  Swinb.  140.  (z)  Perkins  v.  Wildc,  Noy.  95. 

(a)  Saunders  v.  Ritch,  Sty.  279  ;  Ashton  v.  Ashton,  1  P.  Wms.  386.  See  also  Hobson 
V.  Blackburne,  1  My.  &,  K.570. 

(b)  Doe  V.  Jefferson,  2  Bin?.  118;  S.  C,  2  .1.  B.  Moore,  260.  „     „  ^    , 
(r.)  Powell  V.  Bull,  Com.  265  ;  S.  C,  1  E.  &  Y.  733  ;  R.  v.  Shingle,  1  Str.  5o0  ;  S.  C,  1 

E.  &  Y.  738.  See  also  Chatficld  v.  Ruston,  3  B.  &  C.  863 ;  S.  C,  5  D.  &.  R.  69o ;  R.  v. 
Kimbolton,  6  Ad.  &  Ell.  603,  as  to  tithes  under  Inclosure  Acts. 

(d)  I,owndes  V.  Home,  2  Bl.  1252  ;  S.  C,  2  E.  &  Y.  340.  Sec  also  R.  v.  Boldero,  4  B. 
&  C.  467 ;  S.  C,  6  D.  &  R.  557  ;  R.  v.  Wistow,  5  Ad.  &.  Ell.  250 ;  S.  C,  6  Ncv.  &  Man. 
567.  (f)  R.  V.  Turner,  1  Str.  77. 

( "/•)  2  Burn's  E.  L.  tit.  First  Fruits.  (?)  2  Inst.  642. 

(A)  Callis  on  Sewers,  131  ;  Com.  Dig.  Sewers  (E.  5).  And  see  Soady  v.  Wilson,  3  Ad. 
&  Ell.  248,  and  Diff.  P.  iii.  tit.  Sewers. 

(!)  2  Inst.  641 ;  Prideaux  on  Tithes,  302;  2  Comm.  27. 

Ik)  Nichols  V.  Parker,  14  East,  331. 


120  crabb's  law  of   real  property. 

authorilies,  or  the  perambulations  whereof  are  generally  made  every  year ;(/) 
but  one  person  may  prescribe  to  have  tithes  within  the  parish  of  another 
parish,  which  is  called  a  portion  of  tithes  ;(m)  and  this  is  so  distinct  from 
the  rectory,  that  if  the  person  having  it  purchases  the  rectory,  the  portion 
is  not  extinct,  but  remains  grantable  ;(?2)  and  where  a  layman  or  portionist 
has  been  long  in  possession,  courts  of  equity  will  not  disturb  the  possession, 
but  leave  the  rector  to  establish  his  right  at  law.(o) 

As  between  the  parson  and  the  vicar  of  a  parish,  all  tithes  to  which  the 
latter  cannot  prove  a  title  by  endowment  or  prescription  belong  to  the 
parson  ;(/j)  and  as  the  tithes  do  not  belong  to  the  vicar  de  jure,  endowment 
will  not  be  presumed,  but  must  be  shewn  on  his  part;(5')  but  a  vicar  has 
j.^,p._-,  *the  same  right  to  all  tithes  in  his  endowment,  as  a  rector  has  of 
L  -'  common  right, (r)  unless  a  usage  to  the  contrary  be  shewn  ;(r)  but 
if  a  vicar  have  received  tithes  for  many  years  not  mentioned  in  his  endow- 
ment, it  seems  not  settled  whether  a  subsequent  augmentation  or  endowment 
shall  be  presumed  :(s)  the  deed  of  endowment  is  not  conclusive  in  questions 
between  rector  and  vicar.(?) 

136.  Tithes  extra-parochial  or  within  the  compass  of  no  certain  parish 
belong  to  the  Crown, (?/)  and  the  title  of  the  Crown  is  not  confined  to  such 
extra-parochial  lands  as  were  forest  or  parts  of  forest  land  •,{x')  and  under  a 
grant  of  tithes  arising  from  lands  de  novo  assartatis  et  assarfandis  within 
the  extra-parochial  parts  of  a  forest,  it  was  held,  that  the  grantee  was  not 
entitled  to  the  tithes  of  lands  in  the  occupation  of  the  keeper  of  the  forest, 
nor  of  lands  enclosed  bj'-  a  private  person  by  encroachment  upon  the 
forest.  (?/) 

The  tithes  of  assart  lands  in  the  grant  of  E.  1  should  be  confined  to  such 
lands  as  were  then  assarted  or  intended  shortly  so  to  be,  and  not  be  extended 
to  such  as  should  be  so  in  future  ages.(z)  If  the  queen  grants  them,  her 
patentee  shall  have  them;(«)  but  by  custom  a  parson  or  vicar  may  be  enti- 
tled to  the  tithes  of  extra-parochial  lands. (A) 

By  the  2  &  3  E.  6,  tithes  of  cattle  depasturing  in  commons  are  made  pay- 
able to  the  parson  or  vicar  of  the  parish  where  the  owner  of  the  cattle  lives; 
and  by  the  17  G.  2,  c.  37,  where  waste  lands  formeri}'^  fens  and  marshes 
are  drained,  and  the  parish  to  which  they  belong  cannot  be  ascertained,  the 

(I)  Phill.  Ev.  249.     See  also  Clarke  v.  Jenninajs,  4  Gvvill.  1 124;  Jcnkinson  v.  Royston, 

5  Price,  504.  (m)  Gibs.  G63. 

(n)  Sir  E.  Coke's  case,  2  Roll.  Rep.  161  ;  1  Gwill.  375;  1  E.  &,  Y.  314.  Sec  also  on 
this  point  The  Serjeants'  case,  Dy.  83  a;  1  Gwill.  119;  1  E.  &  Y.  51  ;  Futter  v.  Barome, 
4  Co.  31 ;  Godb.  35  ;  1  E.  &.  Y.  86 ;  Downes  v.  Moorman,  Bunb.  18.) ;  2  Gwill.  6.")8  ;  1  E. 

6  Y  803  ;  I,ewis  v.  Younff,  M'Clel.  1 13  ;  S.  C,  13  Price,  3)4  ;  3  E.  &  Y.  1 1.*^5  ;  Woolley 
V.  Piatt,  M'Clel.  4GS ;  S.  C",  3  E  &  Y.  106S;  PLllatt  v  Ferrars,  2  B.  Ac  P.  54-3  ;  S.  C,  2 
E.  &,  Y.  494 ;  Carlisle  (Bp.l  v.  Blain,  1  Y.  &  J.  123 ;  Wyld  v.  Ward,  3  Y.  &  J.  1  '2. 

(&)  Scott  V.  Airy,  cited  1  Anstr.  311.     See  also  Oxenderi  v.  Skinner,  4  Gvvill.  1513. 

(/>)  2  Bulst.  27;  Grene  v.  Austin,  Cro.  Jac.  116;  S.  C.,Y(lv  87. 

{(j)  Grene  v.  Austen,  sup. ;  and  see  Lady  Dartmouth  v.  Roberts,  16  East,  334. 

(r)  Fox  V.  Ruftv,  Bumb.  87. 

(s)  Twiss  V.  Brazen-Nose  College  (Oxon),  Hard.  228.  (/)  Gibs.  719. 

(w)  2  Inst.  647  ;   1  Roll.  Abr.  6.i7. 

(x)  Ait.-Gen.  v.  Eardley  (Lord),  8  Price,  39  ;  S.  C,  Dan.  271. 

(y)  Parry  v.  Gibbs,  4  Gwill.  1490.  {z)  Bond  v.  Brown,  Bunb.  312. 

C")  1  Roll.  Abr.  657, 1.  15. 

(6)  14  IL  4, 17  ;  Sav.  60 ;  Com.  Dig.  Dismes,  (E.  3) ;  1  E.  &.  Y.  29. 


TITHES,     BY     WHOM     PAYABLE.  121 

tithes  arising  therefrom  are  due  to  the  tithe-owner  of  the  parish  lying  nearest 
to  such  lands. 

By  the  common  law  no  one  was  capable  to  take  tithes  in  pernancy,  but  a 
spiritual  person,  or  the  queen,  who  is  ^persona  mixta  \{c)  yet  by  p*iK(.-i 
indirect  means  a  layman  may  take  them,  and  the  lord  of  the  manor  L  -* 
may  prescribe  to  take  all  tithes  within  his  manor. (</) 

By  the  27  H.  8,  c.  28,  patentees  of  all  manors,  lands,  tenements,  tithes, 
pensions,  and  other  hereditaments  to  whom  such  manors,  &c.  were  granted, 
now  called  lay  impropriators,  were  to  enjoy  the  same  according  to  the  effect 
of  the  letters-patent,  and  were  to  have  the  same  remedies  and  the  same 
means  of  assurance  as  for  temporal  possessions  ;  it  was  held  therefore  that 
tithes  of  a  rectory,  which  belonged  lo  a  dissolved  abbey,  are  due  to  the 
grantee  of  the  Crown,  and  not  to  the  incumbent,  as  rector.(e) 

Mere  non-payment  of  a  particular  tithe  is  no  evidence  against  a  lay  rector 
of  a  conveyance  of  that  tithe. (/) 


IV.  iSi)  to]\om  pas-ntU. 

137.  All  persons  generally  ought  to  pay  their  tithes  to  whom  they  are 
due,  for  of  common  right  all  lands  ought  to  pay  tithe  ;[§)  and  they  were 
formerly  payable  by  the  occupier  of  the  lands,  or  the  lessee  ;{Ji)  but  now  by 
the  Tithes  Commutation  Act,  6  &  7  W.  4,  c.  71,  the  rent-charge,  which  is 
substituted  for  the  tithes,  is  payable  by  the  tenant  in  the  first  instance,  under 
all  leases  made  since  13  Aug.  1836,  but  he  is  allowed  to  deduct  the  same 
in  account  with  his  landlord.  This  must  however  be  understood  to  take 
place  in  the  absence  of  any  stipulation  to  the  contrary,  for  the  Act  does  not 
preclude  the  landlord  and  tenant  from  making  any  other  terms  upon  the 
subject  which  they  think  proper.  By  another  section  of  the  Act  a  tenant 
at  rack-rent  is  at  liberty  to  dissent  from  the  payment  of  the  rent-charge,  and 
in  that  *case  the  landlord  after  the  commutation  is  completed  is  to  p*j5,7-i 
take  the  tithes  from  the  tenant  during  his  tenancy.  ^ 

If  tht--  owner  or  lessee  sold  the  crop  of  grass  or  corn,  and  the  vendee  cut 
it,  he  was  to  pay  the  tithe  ;(«)  but  if  the  owner  consumed  his  herbage, 
by  agistment  of  the  cattle  of  another,  the  owner  of  the  cattle  was  not  to  pay 
the  tithe. (A;)  If  a  parson  at  common  law  had  enfeoffed  another  of  his  glebe, 
the  feofft-e  paid  the  tithes,  for  tithes  were  not  extinguished  by  unity  of  pos- 
session ;(/)  so,  if  the  parson  leased  his  glebe,  the  lessee  was  to  pay  the 
tithes  ;(/)  so,  if  a  parson  leased  his  rectory,  he  should  pay  tithes  to  his  lessee 
for  his  other  lands  in  the  parish  ;(?n)  but  the  effect  of  the  Tithes  Commuta- 
tion Acts  is,  it  is  presumed,  to  make  this  now  for  the  most  part  a  matter  of 
arrangement  between  the  parties. 

(c)  2  Co.  44.  C'O  Ti^ot  v.  Hearn,  Cro.  El.  5f)9. 

(  p)  Turner  v.  Smith,  7  B.  P.  C.  7.     Sec  also  Downed  v.  Moorman,  Bunb.  189. 

(  /')  N:i2-Ie  V.  Edwarrlsi,  3  Anstr.  702;  Lord  Pctre  v.  Blencoc,  Id.  395. 

is)  Priddle  and  Nappicr's  case,  11  Co.  15.  (/')  2  Bulstr.  184. 

(/)  2  Bulst.  184.  (/.)  1  Roll.  Abr.  636 ;  1  W.  Jo.  254. 

\l)  Dy.  43 ;  Priddle  and  Nappier's  case,  sup.  (?«)  Moore,  532. 


122  crabb's  law   of  real  property. 


V.  s&'Uat  E\\ii\QU  arc  2ritUcaMc. 

138.  The  law  by  which  it  has  been  heretofore  determined  what  things 
were  titlieable  or  otherwise  must,  as  soon  as  the  Tithes  Commutation  Acts 
come  fully  into  operation,  cease  to  be  applicable  in  practice,  and  therefore 
need  not  to  be  enlarged  upon  in  this  work.  By  the  6  &  7  W.  4,  c.  71,  ss. 
36,  37,  the  commissioners  are  empowered  to  ascertain  the  total  value  of 
tithes  in  any  parish,  in  which  no  previous  agreement  has  been  made  ;  and 
the  value  of  the  tithes  is  to  be  calculated  (after  making  all  just  deductions 
on  account  of  the  expenses  of  collecting,  preparing  for  sale,  and  marketing, 
when  such  tithes  have  been  taken  in  kind)  according  to  the  average  of 
seven  years  preceding  Christmas  in  the  year  1835,  unless  the  tithes  have 
been  compounded  for  or  demised,  in  which  case  the  amount  of  such  com- 
position or  the  sum  agreed  to  be  paid  instead  of  tithes  is  to  be  taken  as  the 
^-  _„-.  clear  value.  *In  the  case  of  hop-grounds,  orchards,  or  gardens,  the 
L  -^  commissioners  are  directed  by  the  Act  to  estimate  the  value  of  the 
tithes  thereof  according  to  the  average  rate  of  composition  for  the  tithes  of 
hops,  fruit,  and  garden  respectively  during  seven  years  preceding  Christ- 
mas in  the  year  1835  within  a  district  to  be  assigned  in  each  case;  and  in 
the  case  of  coppice-wood,  the  value  of  the  tithes  is  to  be  estimated  according 
to  the  average  value  of  coppice-wood  of  the  same  kind  cut  during  the  period 
of  seven  years  in  that  and  the  neighbouring  parishes  ;  in  the  case  of  inclo- 
sures,  barren  lands,  glebe,  and  lands  of  any  privileged  orders,  the  value  of 
the  tithes  is  to  be  estimated  according  to  the  average  value  of  lands  of  the 
like  description  and  quality  in  that  and  the  neighbouring  parishes,  estimat- 
ing the  same  as  chargeable  to  all  parliamentary,  parochial,  county  and  other 
rates  and  charges  and  assessments,  to  which  the  said  tithes  are  liable,  and 
shall  add  the  value  so  estimated  to  the  value  of  the  other  tithes  of  the  parish 
so  ascertained  as  aforesaid.  As  soon  as  the  commissioners  have  ascertained 
the  total  value  of  all  the  tithes  in  the  parish  they  arc  directed  by  sect.  50  of 
the  same  Act  to  frame  an  award,  declarinor  the  sum  ascertained  to  be  the 
amount  of  the  rent-charge  to  be  paid  in  respect  of  the  tithes  of  the  parish; 
and  by  sections  33  and  53  valuers  are  directed  to  be  appointed,  whose  duty 
it  is  to  apportion  the  rent-charge  to  be  paid  among  the  several  lands  of  the 
parish. 


VI.  getting  out  aUiT  Ciirri>i!t3  titomo  JFithcs. 

139.  Every  person  was  bound  before  the  Tithes  Commutation  Acts  to 
set  out  the  tithes  of  his  own  land,  but  the  manner  of  doing  it  was  for  the 
most  part  governed  by  the  custom  of  the  place  ;(n)  yet  if  the  owner  would 
not  cut  his  crop  before  it  was  spoiled  the  parson  was  without  his  remedy  ;(o) 
r*l591  ^"^'  ^^^  parson,  vicar,  impropriator,  or  farmer  *coukl  not  come  him- 
L  -'  self  and  set  out  the  the  tithes  without  the  license  and  consent  of 
the  owner,  and  if  he  did,  he  would  render  himself  liable  to  an  action  of 
trespass. f/j)  As  this  part  of  the  law  of  tithes  will  very  shortly  cease  to  be 
in  operation,  it  is  not  necessary  to  add  anything  further  on  the  subject. 

(n)  Hall  V.  Mackctt,  4  Gwill.  1160.         (0)  Godolph.  394.        (/))  Dcggc,  p.  2,  c.  14. 


EXEMPTIONS    FROM    TITHES.  123 


VII.  livcmptiojis  from  STitiics. 

140.  As  a  rule,  one  spiritual  person  does  not  pay  tithes  to  another,  as  if 
a  vicar  be  endowed  of  glebe  and  small  tithes  he  shall  not  pay  tithes  of  his 
glebe  to  the  parson  ;(^)  so,  a  parson  shall  not  pay  tithe  to  the  vicar  for  his 
glebe  ;(r)  so,  if  a  vicar  be  endowed  of  small  tithes  generally,  the  parson  shall 
not  pay  small  tithes, (s)  unless  the  endowment  was  of  tithe  or  glebe  expressly, 
according  to  the  maxim,  ecclesias  declmas  solvere  non  debet,  but  this  maxim 
applies  only  as  between  rector  and  vicar  of  the  same  church ;(/)  so,  the 
lessee  of  the  parson  shall  pay  small  tithe  to  the  vicar  ;(?<)  so,  if  the  land 
comes  to  the  parsonage  after  the  endowment. (y)  A  spiritual  person  may 
prescribe  in  non  dechnando  •,[x')  so,  his  lessee  ;(a')  so,  the  copyholders  of  a 
manor  may  allege  a  prescription  in  the  bishop,  lord,  of  the  manor,  for  their 
discharge ;(?,')  so,  a  parson  having  glebe  in  another  parish. (z) 

Regularly  no  laj'man  can  be  discharged  from  the  payment  of  tithes;  but 
to  this  rule  there  are  several  exceptions,  and  lajanen  have  been  discharged 
four  several  ways — as  1st.  *By  the  Pope's  bull;(o)  2.  By  prescrip-  (-*i/.f,-i 
tion  ;   3.  By  composition  real ;  and  4.  By  Act  of  ParHament.  L         -^ 

Prescription  is  of  two  kinds,  namely,  prescription  in  non  raodo  decimondi, 
which  is  a  total  discharge,  and  prescription  de  modo  decimundi,  which  is  a 
partial   discharge.     The  queen  by  her  prerogative  may  prescribe  in  non 
modo  decimandi,  for  she  is  mixta  persona  \{b^  but  without  a  particular  pre- 
scription she  will  not  be  discharged  from  tithes  for  the  ancient  demesnes  of 
the  Crown ;((;)  so,  if  she  aliens  the  land  the  prescription  is  destroyed  ;(c)  so, 
a  man  may  prescribe  that  by  the  custom  of  the  country  no  tithes  are  paid 
for  the  milk  of  ewes  ;(rf)  but  it  is  said  in  the  books  that  a  layman  may  pre- 
scribe de  modo  decimandi,  but  not  in  non  modo  decimandi,  because  without 
special  matter  shewn  it  shall  not  be  intended  that  he  has  any  lawful  dis- 
charge ;(e)  so,  a  man  may  prescribe  to  be  discharged  from  the  payment  of 
tithes  because  that  a  modus  has  been  paid  time  whereof,  &c.,  in  lieu  of  the 
same  tithe,  and  such  modus  may  commence  upon  a  real  composition, (/) 
A  real  composition  was  when  land  was  given  by  a  man  to  a  parson  with 
consent  of  the  patron  and  ordinary,  that  he  might  be  discharged  of  all  his 
tithes,  and  a  modus  was  paid  in  lieu   of  them,(g)  and  this  discharge  went 
with  the  land  into  whatever  hands  it  camc.(/i) 

By  Act  of  Parliament  lands  in  the  hands  of  all  religious  bodies  were 
discharged  by  their  order  from  the  payment  of  tithes,  and  all  the  lands 
which  belonged  to  such  orders  at  the  time  of  the  dissolution  were  by  force 
of  the  statutes  in  the  reign  of  Hen.  8  declared  exempt  from  tithes,  whether 
in  the  hands  of  the  King  or  his  patentees ;  but  it  has  been  held  that  a 
tenant  for  life  or  years  is  not  within  the  statute  for  discharging  tithes  p*ipj-| 
heretofore  part  of  the  possessions  of  a  *Cistertian  abbey,  and  a  L         J 

(7)  Blenco  v.  IVIarston,  Cro.  El.  479.  (r)  Moor,  475. 

(s)  Blenco's  case,  Cro.  El.  578. 

(J.)  Warden  and  Canons  v.  Dean  of  St.  Paul's,  2  Wils.  Excheq.  1 ;  S.  C,  4  Prico,  65. 

(m)  Blenco's  ca?e,  sup.         fr)  Moor,  910.  (x)  Wright  v.  Wright,  Cro.  El.  475. 

(y)  Crouch  v.  Fryer,  Cro.  El.  7S4.         (z)  Roll.  Abr.  653,  1.  30.         («)  2  Inst.  653. 

(6)  Moor,  486  ;  W.  Jo.  387.  (c)  Compost  v. ,  Hard.  315. 

id)  1  Roll.  654,  1.  15.  (p)  Petre  v.  Blencoe,  3  Anstr.  945. 

(/)  W.  Jo.  369 ;  Moor,  539.  {g)  W.  Jo.  369.  (A)  Cro.  Car.  423. 


124  crabb's  law   of  heal  property. 

tenant  in  tail  having-  the   inheritance   is   discharged  only  while  the  lands 
are   in  his  own  man u ranee,  (z) 

The  general  view  of  the  law  of  tithes  will,  it  is  presumed,  suffice  to  con- 
nect the  old  and  new  law,  as  no  questions  can  be  raised  on  the  subject  of 
exemptions  when  the  Tithes  Commutation  Acts  come  into  full  operation, 
provision  being  made  by  the  Act  for  settling  all  matters  of  dispute  previously. 
See  further,  infra,  §  141  at  seq. 


VIII.  ^ii'm  of  tithes  m\ti  IXrut-chnrgcs  ijutrcr  the  Eitlxtn 

Ctommutaticu  Slcts. 

141.  The  Tithes  Commutation  Acts  are  four  in  number,  namely,  the  6  & 
7  W.  4,  c.,71,  the  General  Act;  7  W.  4  &  1  V.  c.  69,  an  amendment  of 
the  same  ;  1  &  2  V.  c.  64,  for  facilitating  the  merger  of  rent-charges;  and 
the  2  &  3  V.  c.  32,  another  amendment  of  the  General  Act.  (See  Dig.  P. 
i.  tit.  Tilhes.)  These  statutes  are  to  be  considered  as  one  enactment,  the 
object  of  which  is  to  substitute  a  corn-rent,  payable  in  money,  and  perma- 
nent in  quantity,  though  fluctuating  in  value,  for  all  lilhes,  the  same  to  be 
payable  in  the  nature  of  a  rent-charge  issuing  out  of  the  land  charged  there- 
witb,  by  two  equal  half-yearly  payments  on  the  1st  July  and  1st  January  in 
every  year. 

The  law  of  tithes  and  rent-charges  under  and  since  these  statutes  respect, 
1.  The  apportionment  of  the  rent-charge;  2.  The  recovery  of  the  rent- 
charge  ;  3.  The  rateability  of  the  rent-charge ;  4.  Merger  of  the  rent- 
charge  ;  5.  Other  incidents  to  the  rent-charge  ;  6.  Extent  of  the  Tithes 
Commutation  Acts  as  to  rent-charges. 

r*162]  *1.  Apportionment  of  the  Jlent-chargc. 

142.  The  apportionment  of  the  rent-charge  under  these  Acts  is  of  two 
kinds,  namely,  that  which  respects  the  land,  and  that  which  respects  the 
person' entitled  to  the  rent  charge. 

As  to  the  first  of  these  apportionments:  the  6  &  7  W.  4,  c.  71,  s.  33, 
directs  that  the  total  sum  to  be  paid  by  way  of  rent-charge  instead  of  tilhes, 
shall  be  apportioned  amongst  the  several  lands  in  the  parish,  having  regard 
to  the  average  titheable  produce  and  productive  quality  of  the  lands,  so 
that  in  each  case  the  several  lands  shall  have  the  full  benefit  of  every 
modus  and  composition  real,  prescriptive,  and  customary  payment,  and  of 
every  exemption  from,  or  non-liability  to  tithes  relating  to  the  said  lands 
respectively,  and  having  regard  to  the  several  tithes  to  which  the  said 
lands  are  severally  liable.  By  sect.  58  the  rent-charge  intended  to  be 
charged  upon  any  lands  may,  before  the  confirmation  of  the  apportionment, 
at  the  request  of  the  owner  thereof,  be  specially  apportioned  upon  particular 
lands,  in  such  manner  and  proportion  as  he,  with  the  consent  of  the  person 
entitled  to  the  rent-charge  may  direct;  and  by  sect.  72,  the  Commissioners 
of  the  Land-lax  are  empowered,  with  the  consent  of  two  justices  and  at  the 
request  of  the  land-owners,  to  alter  the   apportionment.     By  sect.   55,  a 

(t)  Wilson  V.  Redman,  Hard,  174;  Arclib.  of  Canterbury's  case,  2  Co.  46. 


RECOVERY    OF    RENT-CHARGE.  125 

drauglit  of  every  apportionment  is  to  be  made,  which  is  to  state  the  name  or 
description  and  the  true  or  estimated  quantity  in  statute  measure  of  the 
several  lands  to  be  comprised  in  the  apportionment,  and  to  set  forth  the 
names  and  description  of  the  proprietors  and  occupiers,  and  whether  the  lands 
are  cultivated  as  arable,  meadow,  or  pasture  land,  or  as  woodland,  common 
land,  or  howsoever  otherwise,  and  to  refer,  by  a  number  set  against  the  de- 
scription of  such  lands,  to  a  map  or  plan  ;  and  such  draught  shall  also  state 
the  amount  charged  upon  the  said  several  lands,  and  to  whom  and  in  what 
right  the  same  shall  be  respectively  payable. 

*143.  By  the  4  &  5  W.  4,c.  22,  s.  2,  it  is  provided,  that  all  rent-  ^^,^0-1 
charges,  moduses,  compositions,  &c.,  shall  be  apportioned  in  such  L  J 
manner  on  the  death  of  any  person  interested  therein,  and  the  executors  and 
administrators  of  such  person  shall  be  entitled  to  a  proportion  of  such  rents, 
&c.,  according  to  the  time  which  has  elapsed  since  the  last  periodical  pay- 
ment up  to  the  day  of  the  death  ;  and  as  by  sect.  86  of  the  6  and  7  W.  4, 
c.  71,  the  provisions  of  that  Act  are  made  to  extend  to  all  rent-charges  under 
this  Tithes  Commutation  Act,  it  follows,  that  if  the  interest  of  the  owner  of 
the  rent-charge  should  cease  before  the  Isl  January  or  1st  July,  (the  ap- 
pointed times  of  payment.)  such  owner  or  his  representative  will  be  entitled 
to  a  proportional  part  of  the  rent-charge  for  the  time  which  may  have 
elapsed  from  the  last  day  of  payment  to  the  time  of  his  interest  deter- 


mining. 


2.  Recovery  of  the  Rent-charge. 

144.  At  the  common  law  there  was  no  distress  for  tithes,  but  the  7  &  8 
W.  3,  c.  'M ;  1  G.  1,  St.  2,  c.  6  ;  53  G;  3,  c.  127,  s.  6  ;  5  &  6  W.  4,  c.  74, 
give  summarj'  powers  to  justices  to  enforce  the  payment  of  tithes  against 
Quakers.  By  the  6  &  7  W.  4,  c.  71,  ss.  81,  82,  the  inode  of  recovering  the 
rent-charge  in  arrear  is  by  distraining  for  it  in  the  same  manner  as  a  land- 
lord recovers  rent  in  arrear.  Such  power  is  given  to  the  owner  at  the  expi- 
ration of  twenty-one  days  after  any  half-yearly  day  of  payment,  but  not  more 
than  two  years'  arrears  shall  at  any  time  be  recoverable  by  distress  ;  by 
which  provision  the  law  is  so  far  altered  that  where,  by  an  Inclosure  Act,  a 
corn-rent  was  made  payable  in  lieu  of  tithes,  the  landlord  was  held  liable  to 
the  payment  of  the  same  during  all  the  time  that  he  was  legally  in  possession 
of  lands. (A;)  As  a  further  remedy  for  the  recovery  of  arrears,  after  forty  days» 
possession  of  the  land  may  be  given  to  the  owner  of  the  rent-charge  until 
the  arrears  *and  costs  are  satisfied.  The  remedy  of  distress  is  also  ^^-.a.--, 
extended  to  Q-uakers,  whose  goods  may  be  distrained  wherever  found,  L  J 
whether  on  the  premises  or  elsewhere  ;  but  the  Act  directs,  that,  in  all  cases 
of  distress  upon  the  goods  of  such  persons,  they  may  be  sold  without  the 
necessity,  as  in  the  case  of  other  persons,  of  their  being  impounded  for  the 
five  days. 

3.  JRateabiliti/  of  Rent-charges. 

145.  By  sect.  69  of  6  &  7  W.  4,  c.  71,  every  rent-charge  payable  in  lieu  of 

(/. )  Newling  V.  Tcarse,  1  B.  &  C.  437 ;  S.  C,  3  E.  &  Y.  1094. 
July,  1846 9 


126  crabb's   law    of    real    property. 

tithes  is  liable  to  the  same  rates  as  tithes  have  been;  and  as  to  what  rates 
and  taxes  tithes  were  liable  to,  see  further,  ante,  §  134. 

4.  Merger  of  Rent-charge. 

146.  The  power  of  merging  rent-charges,  payable  in  lieu  of  tithes,  is 
altogether  new,  and  applies  of  course  only  to  impropriate  tithes  ;  by  sect. 
71  of  6  &  7  W.  4,  c.  71,  tenants,  in  fee-simple  or  fee-tail,  who  are  possessed 
of  both  the  land  and  the  tithes  or  of  any  rent-charge  in  lieu  of  tithes,  are 
enabled  by  any  deed  or  declaration  under  their  hands  or  seals,  to  be  made 
in  such  form  as  the  Tithe  Commissioners  approve  of,  to  release,  assign,  or 
otherwise  dispose  of  the  rent-charge,  so  that  the  same  may  be  absolutely 
merged  and  extinguished  in  the  freehold  and  inheritance  of  the  land  on 
which  the  same  has  been  charged.  This  power  .was  extended  by  the  1  &  2 
y.  c.  64  to  all  person  having  powers  of  appointment  over  the  fee-simple  of 
tithes  or  rent-charge,  and  also  to  tenants  for  life,  in  cases  where  the  tithes  or 
rent-charge  and  the  lands  are  settled  to  the  same  uses,  and  to  copyhold  as 
well  as  freehold. 

By  sect.  1  of  2  &  3  V.  c.  62,  it  is  provided,  that  on  the  merger  of  tithes 
or  rent-charge  the  lands  in  which  such  merger  takes  effect  shall  be  subject 
to  any  charge,  incumbrance,  or  liability  which  lawfully  existed  on  such 
tithes  or  rent-charge.  Among  the  charges  to  which  tithes  were  liable 
^  ^  -,  *may  be  reckoned  the  liability  to  the  repairs  of  the  chance],  stipends 
L  J  of  ministers,  fee-farm  rents,  and  the  like  ;  and  by  sect.  2  of  this  last 
Act  no  deed  or  declaration  for  the  merger  of  tithes  shall  be  chargeable  with 
stamp  duty.  By  sect.  7  of  2  &  3  V.  c.  62,  tithes  or  rent-charge  of  glebe 
land  may  be  merged. 

5.  Incidents  to  Tithes  and  Rent-charges. 

147.  By  sect.  71  of  6  &  7  W.  4,  c.  71,  rent-charges  are  made  subject  to 
the  same  incumbrances  and  incidents  as  tithes  were  before  this  Act,  and 
persons  are  to  have  the  same  remedies  for  recovering  the  same  as  if  their 
right  had  accrued  after  the  commutation ;  but  it  is  provided  that  nothing 
in  the  Act  should  give  validity  to  any  mortgage  or  other  incumbrance 
which  before  the  passing  of  the  Act  was  invalid  or  could  not  be  enforced. 
The  mortgages  and  incumbrances  here  referred  particularly  to,  are  the 
chargings  upon  benefices  prohibited  by  13  El.  c.  20.  See  Dig.  P.  i.  ii.  tit. 
Benefice. 

By  the  same  section  it  is  provided  that  every  estate  for  life  or  other 
greater  estate  shall  be  taken  to  be  an  estate  of  freehold,  and  every  estate 
in  such  rent-charge  shall  be  subject  to  the  same  liabilities  and  incidents  as 
the  like  estate  in  the  tithes  commuted  for  such  rent-charge  ;  and  where  any 
lands  were  exempted  from  tithe  while  in  the  occupation  of  the  owner  thereof 
by  reason  of  being  glebe,  or  of  having  been  heretofore  parcel  of  the  posses- 
sions of  any  privileged  order,  the  same  lands  shall  be  in  like  manner 
exempted  from  the  payment  of  the  rent-charge  apportioned  on  them  whilst 
in  the  occupation  of  the  owner  thereof ;  and  where  by  any  Act  of  Parlia- 
ment as  in  the  case  of  redeeming  the  land-tax,  (see  Dig.  P.  i.  tit.  Land-tax,) 
and  mortgaging  benefices  under  17  G.  3,  c.  53,  (see  Dig.  P.  i.  ii.  tit.  Bene- 


RENT.  127 

fices)  any  tithes  are  authorized  to  be  sold  or  otherwise,  the  rent-charges  for 
which  they  are  commuted  are  to  be  in  like  manner  sold  or  otherwise. 

*6.  Extent  of  the  Tithes  Commutation  Acts  as  to  Jient-charges.  [466] 

148.  13y  the  6  «fc  7  W.  4,  c.  71,  ss.  26,  27,  28,  provisions  are  made  for 
giving  land  in  lieu  of  tithes  to  ecclesiastical  persons,  but  not  to  lay  impro- 
priators. Not  more  than  twenty  acres  of  land  may  be  so  given  in  exchan<Te, 
and  the  same  is  to  be  effected  by  an  agreement  which  is  to  operate  as  a  con- 
veyance, and  the  lands  so  given  in  exchange  are  to  be  subject  to  the  same 
uses  and  trusts  as  the  tithes  were  subject  to.  By  this  Act  land  in  lieu  of 
tithes  could  not  be  given  after  the  confirmation  of  the  apportionment,  but  by 
the  2  &  3  V.  c.  62  such  exchanges  may  be  made  at  any  time  while  the 
commission  lasts. 

Easter  offerings,  mortuaries,  surplice  fees,  tithes  of  fish  or  of  fishing,  and 
all  personal  tithes  other  than  the  tillies  of  mills  or  mineral  tithes, are  excluded 
from  the  operation  of  the  6  &  7  W.  4,  c.  71,  unless  by  some  special  provi- 
sion to  be  inserted  in  anj?^  parochial  agreement ;  but  the  2  &.  3  V.  c.  62,  s. 
6,  empowers  land-owners  and  tithe-owners  before  the  confirmation  of  any 
apportionment,  after  a  compulsory  award,  to  enter  into  an  agreement  for  the 
commutation  of  such  Easter  offerings,  &c. 

Tithes  in  London,  which  are  regulated  first  by  an  ancient  constitution  of 
the  church  and  afterwards  by  the  22  &  23  Car.  2,  c.  15,  are  excepted  from 
a11  other  Acts  on  the  subject  of  tithes.  See  further  Burn's  E.  L.,  Pliilli- 
more's  ed.,  tit.  Tithes;  Bosanquct's  Tithes  Commutation  Act;  Shelford  on 
the  Tithes  Commutation  Acts. 


*SECTION  IV.  [*167] 

RENT. 

§  149.  The  word  "rent"  signifies  properly  a  return,  and  may  be  defined 
a  return  in  acknowledgment  given  for  the  possession  of  some  corporeal 
hereditament,  or  in  other  words  "an  annual  return  made  by  the  tenant  in 
labour,  money,  or  provisions,  as  a  retribution  for  the  land  enjoyed. "(/)  The 
subject  of  rent  may  be  considered  under  the  following  heads  : — 

1.  The  nature  and  different  kinds  of  rent ; 

2.  Creation  and  reservation  of  rent ; 

3.  What  estates  may  be  had  in  a  rent; 

4.  Payment  of  rent ; 

5.  Extinguishment  and  suspension  of  rent ; 

6.  Apportionment  of  rent ; 

7.  Recovery  of  rent. 

(/)  Gilb.  on  Rents,  9. 


128 


CRAEBS  LAW  OF  REAL  PROPERTY, 


I.  Siatuve  of  iUnt  miXi  its  tiiffcrcnt  llinl)^* 


§  150.  Need  not  be  Money. 

Must  bo  soimtlmig  certain. 

Must  not  be  Parcel  of  the  Profits. 

Nor  a  Suin  in  gross, 
151.  Different  Kinds  of  Rent. 

Rent-service. 
153.  Rcnt-cliarg-c. 

What  good  as  a  Rent-charge. 
153.  Rent-sock. 


§  154.  Other  Rents: 
Rack-rent. 
Rents  of  Assize. 
(;hicf  Rents. 
Quit-rents. 
Vi.sconticl  Rents. 
155.  Fines. 

Nomine  Poena;,  or  Penal  Rent 


150.  Although  a  rent  must  be  a  return  of  profit,  yet  it  need  not  be  a  sum 
of  money,  as  it  usually  is,  for  it  may  be  in  hawks,  capons,  corn,  or  other 
profit  lying  in  render ;(?»)  or  it  may  be  in  an  office,  or  attendance. (m)  It 
r*ifis~l  ^^^'^  '""however  be  a  something  certain,  and  therefore  where  a  man 
L  -^  demised  rendering  rent  "after  the  rate  of  c£        per  ami.,"  this  was 

held  void  because  it  did  not  appear  what  rent  should  be  paid  in  cer- 
tain.(n)(l)    But  if  it  can  be  reduced  to  a  certainly  it  will  be  sufficient, (o)(2) 

So,  a  rent  must  not  be  parcel  of  the  annual  profits  themselves,  as  the  ves- 
ture or  herbage  of  the  land  or  the  like;(;;)i^3)  and  where  it  is  a  corn-rent,  as 
in  the  case  of  hospital  leases,  and  the  reddenduin  is  "  so  many  quarters  of 
corn,"  it  will  be  understood  to  mean  legal  quarters,  reckoning  the  bushel  at 
eight  gallons. (</) 

So,  where  a  sum  of  money  is  made  payable  for  goodwill  over  and  above 
the  rent,  this  additional  sum,  though  payable  annually,  was  not  to  be  con- 
sidered as  rent,  only  as  a  sum  in  gross  ;(r)  so,  if  A.  enfeoff  B.  upon  condi- 
tion that  B.  and  his  heirs  shall  nnder  to  C.  and  his  heirs  a  yearly  rent  of 
10s,,  and  if  he  fail  of  payment,  it  shall  be  lawful  for  A.  and  his  heirs  to 
re-enter,  this  is  not  in  nature  of  any  sort  of  rent,  but  a  sum  in  gross,  which 
the  feoffee  is  obliged  to  pay,  ^o  prevent  the  re-entry  of  the  feoffor,  for  at 
common  law  it  could  not  bq  good  as  a  rent-service,  because  nothing  passed 
from  C.  for  wliich  a  retribution  ought  to  be  made  ;(s)  so,  where  a  sum  is 
agreed  to  be  paid  annually  it  will  not  be  deemed  rent,  so  as  to  subject  the 

(JH)  1  Inst.  142.  (n)  Parke  v.  Harris,  1  Salk.  262 ;  S.  C,  4  Mod.  79. 

(0)  Lilt.,  s.  13(5;  1  Inst.  96,  a,;  142,  a.  (/))  1  Inst.  142,  a. 
(7)  St.  t;ross  (M  ister,  <S;c.)  v.  Howard,  6  T.  R.  338. 

(/■)  Smith  V.  Mapleback,  1  T.  R.  441.  (s)  Litt.,  s.  345. 

(1)  Wiles  V.  Hornish,  3  Pcnna.,  30;  the  remedy  is  for  use  and  occupation.  Valentine 
V.  Jackson,  9  Wend.  3U2.     Jacks  v.  Smitli,  1  Biy,  315. 

(2)  As  a  rent  of  a  mill  for  one  third  the  toll;  Frcy  v.  Jones,  2  Raw.  11  ;  and  pay- 
ment of  taxes  and  daubing  and  chinking  a  house  of  certain  dimensions.  Shaffer  v.  Sutton, 
5  Binn.  228. 

(3)  But  it  is  a  good  rent  to  reserve  a  share  of  the  grain;  such  a  rent  passes  with  the 
reversion,  Johnston  v.  Smith,  3  Penna.  496  ;  but  it  would  seem  to  have  been  deliverable  after 
cutting,  <Vc.  Where  it  is  to  be  delivered  in  the  bushel,  the  Lmdlord  lias  no  title  until  de- 
livered, and  he  may  only  distrain,  Riuehart  v.  Ohvine,  5  W.  &  S.  1G3.  So  if  payable  in 
iron,  it  may  be  distrained  for.    Jones  v.  Gundrim,  3  W.  &.  S.  531. 

But  a  contract  to  work  the  land  on  shares,  tliat  is,  dividing  the  produce,  is  not  a  lease, 
and  tlic  owner  has  title  to  his  share  of  the  grain.  Bishop  v.  Doty,  1  Vcrrnt.  38,  and  Foote 
V.  Colvin  3  Jolins.  221.  Where  it  is  reserved  as  rvnl,  even  though  uncertain  in  quantity,  it 
is  rent.   Iloskins  v.  Rhodes,  1  Gill  &.  Johns.  266 ;  Stewart  v.  Dougherty,  9  Johns.  113. 


NATURE    OF    RENT    AND    ITS    DIFFERENT    KINDS.  129 

party  to  distress,  where  the  relation  of  landlord  and  tenant  does  not  exist  ;{t) 
but  when  it  appears  to  be  the  intention  of  the  parties,  money  will  be  detmed 
to  be  rent,  which  is  agreed  to  be  paid  upon  a  lease,  although  the  relation  of 
landlord  and  tenant  have  not  actually  comtnenced,(?;) 

*151.  At  common  law  there  were  three  kindsof  rent,  namely,  rent-  p*,pn-i 
service,  rent-charge,  and  rent-seek.  L 

Rent-service  is  said  to  be  Avhere  the  tenant  holds  his  land  by  fealty  and 
certain  rent,(a:)  and  this  is  properly  what  is  now  understood  by  the  word 
"rent."  It  was  formerly  so  called  because  the  return  consisted  in  some 
corporal  service,  as  ploughing  the  lord's  land.  To  this  kind  of  rent  distress 
is  inseparably  incident,  and  for  that  reason  it  is  absolutely  necessary  that  the 
rent  should  be  certain,  otherwise  the  lessor  cannot  distrain  ;(.*/)(!)  but  if  a  man 
make  a  lease  for  life,  oc  gift  in  tail,  he  must  save  the  reversion  to  himself,  or 
he  will  not  have  the  remedy  by  distress, (z)(2)  unless  there  be  a  cluise  in 
the  deed  reserving  a' power  of  distress  ;  in  that  case  it  will  be  a  rent-charge, 
because  the  land  is  charged  with  such  distress  by  force  of  the  writing  only, 
and  not  of  common  right. (o)(3) 

152.  A  rent-charge  is  any  rent  granted  out  of  lands  by  deed  with  a  clause 
of  distress,  whence  it  derives  its  name,  because  the  land  is  charged  with 
distress  by  the  express  provision  of  the  parties,  which  it  would  not  other- 
wise be, (4)  In  this  manner  a  man  may  make  over  to  another  the  whole  of 
his  estate,  with  a  certain  rent  payable  thereout  ;  and  although  he  reserve 
to  himself  no  reversion,  he   may  yet  retain  his  remedy  by  distress. (6)     So 

(t)  Gates  V.  Frith,  Hob.  130.    See  also  Hoby  v.  Roebuck,  7  Taunt.  1.57  ;•  S.  C,  2  Marsh 
43.3 ;  Doncllaii  v.  Read,  3  B.  it  Ad.  8'J9  ;'>  Lambert  v.  Norris,  2  M.  &  W.  333. 
(u)  London  (City;  v.  Dias,  Woodf.  L.  and  T.  275,  4th  cd. 

(x)  Litt.,  s.  213.  {y)  Id.,  s.  136.  {z^  lb.  Walsal  v.  Heath,  Cro.  El,  656. 

(fl)  Litt.,s,  217,  [h)  lb.;  2  Comm.  42. 

(1)  Vide  n.  1,  1(58,  ante. 

(2)  Cornell  v.  Lamb,  2  Cow.  652. 

(3;  Rents-service  exist  in  Pennsylvania,  with  all  the  incidents  of  that  estate.  They  are 
generally  reserved  on  conveyances  in  fee ;  thai  tliey  mu«t  be  reserved  on  a  conveyance  of  the 
land,  and  not  granted  outoi'tlie  land,  is  plain,  or  tiicy  would  be  rents-charge,  Guthbertv. 
Kulnj,  3  Whart.  3(35.  Rut  by  the  Statute  of  Quia  Employes,  wherever  that  has  extended, 
a  conveyance  of  tlic  fee  left  no  est:]  tc  or  possibility,  sometimes  called  anescheator  seignory, 
in  tlic  crrantor,  and  a  rent  reserved  on  such  a  conveyance  v:as  converted  into  a  rent- 
charg-c.  That  statute  not  being  in  force  in  Penn-^ylvinia,  the  rents  retain  their  original 
character.  Ingersoll  v.  Sergeant,  1  Whart.  352,  And  thougli  it  has  been  correctly  said  no 
reversion  remains,  Robb.  v.  Beaver,  8  VV.  &,  S.  126,  for  there  never  could  beany  alter  a  fee 
simple,  yet  the  same  species  of  estate  does  remain  which  existed  at  common  law  before 
the  statute.  This  is  plainly  shown  by  a  number  of  cases  ;  thus  in  that  last  cited  it  was 
said  fealty  was  due  ;  in  the  same  way  it  is  supposed,  as  is  every  wliere  recognised  between 
lessor  and  lessee  for  years,  also  a  right  of  distress  of  coinmon  right,  Kcncgc  v.  Elliot,  9  W. 
262,  which  are  incidents  only  in  case  of  tenure  ;  to  constitute  which,  such  an  estate  as  has 
been  mentioned  must  exist.  So  also  covenant  for  payment  of  the  rent  will  lie  by  the 
assignee  of  the  grantor  ;  Strcaper  v,  Fisher,  1  Rav/.  1.55  ;  Miles  v.  St.  Mary's  Church,  1 
Whart.  223,  not  for  the  reason  given  in  the  former  case,  but  by  reason  of  the  rigiit  or 
estate  accompanying  the  grant;  this  point  is  fully  considered  in  a  not(!  to  Spencer's  case, 
Smith's  Leading" Cases,  1  vol.  97,  Am.  ed.  The  existence  of  t!iis  rent  moreover,  depends  on 
the  continuance  of  the  estate  of  the  grantor,  being  a  con'-idcraiion  therefore.  Franeiscus 
V.  Reio-art,,  4  W.  1 1 6.  And  an  eviction  without  default  of  the  grantor,  as  by  the  authority 
of  the  State  for  public  use,  creates  an  apportionmcnl ;  Cuthbert  v.  Kuhn,  ante.  So  by  a 
sale  of  the  land,  after  a  levy  on  the  rent,  it  passes ;  Streapcr  v.  Fisher,  ante, 

(4   Cutlibert  v.  Knlin,  3  Wb.t.  365.     And   the  rule  was  thus  in  New  York,  People  v. 
Haekms,  7  Wend,  4G3,  9,  until  the  remedy  w:.s  extended  by  statute,  3  Kent's  Com,  461. 
»2  Eng.  Com,  Law  Reps,  57,    1^23  Id,  215. 


130        CR abb's  law  of  real  property. 

if  a  man  makes  a  foeffment  in  fee  by  deed-poll  reserving  rent,  and  provides; 
that  if  the  rent  be  behind,  it  shall  be  lawful  for  him  to  distrain,  this  will  be 
a  rent-charge,  the  words  amounting  to  a  grant  from  the  feoffee  ;(c)  for  a 
reservation  in  a  deed-poll  is  good,  because  whoever  claims  any  estate  under 
a  deed  mustlake  it  on  the  terms  expressed  in  the  grant  ;(cZ)  so,  if  a  man 
seised  of  lands  in  fee  bind  his  goods  and  lands  to  the  payment  of  a  yearly 
*sum  to  A.,  this  is  a  good  rent-charge  with  power  to  distrain, 
L         J  although  there  be  no  expresss  words  of  charge,  nor  to  distrain. (c) 

So  a  rent  granted  by  parol  by  one  co-parcener  to  another  for  equality 
of  partition  was  good  as  a  rent-charge,  and  she  might  distrain  for  the 
same,  because  co-parceners  are  in  by  descent,  and  are  compellable  to  make 
partition,  and  therefore  such  a  rent,  though  made  without  deed,  would 
before  the  7  &  8  V.  c.  76  (/)  not  have  been  construed  a  rent-seek,  so  as  to 
deprive  the  party  of  her  remedy  by  distress  ;(/)  and  for  the  same  reason 
where  a  rent  was  sfranted  to  a  widow  without  deed  out  of  the  land  whereof 
she  was  dowable,  she  might,  nevertheless  distrain  for  the  same.(o-)  A  rent- 
charge  may  now  be  created  either  by  grant  or  by  the  Statute  of  Uses,  and 
the  statute  has  been  construed  to  extend  to  all  rents  that  might  hereafter  be 
granted  to  the  use  of  any  one. (A) 

153.  A  rent-seek  was  properly  a  rent  reserved  by  deed  without  any 
clause  of  distress,  and  it  was  so  called  because  it  was  prima  facie  bar- 
ren or  unprofitable  to  the  grantee,  as,  until  seisin  had,  he  had  no  remedy 
for  it  ;(j)  but  this  distinction  is  now  done  away  by  the  4  Geo.  2,  c.  238, 
which  gives  the  same  remedy  for  rent-seek  as  for  other  rents. (1) 

154.  To  the  above  may  be  added  some  particular  kinds  of  rents,  as  fee- 
farm  rents,  rack-rent,  rents  of  assize  or  chief  rents,  quit-rents,  and  viscontiel 
rents.  A  fee-farm  rent  is  a  rent-charge  [or  it  is  said  that  it  might  be  a  rent- 
seek(A;)]  issuing  out  of  an  estate  in  fee,  which  it  is  said  must  be  of  at  least 

^  -,  one-fourth  of  the  value  of  the  land.(/)  After  the  Statute  *of  Quia 
L  -J  Emptores,  granting  in  fee-farm,  except  by  the  king,  became  imprac- 
ticable, but  it  is  possible  to  reserve  a  rent  in  fee  which  may  be  good  as  a 
rent-charge,  (m) 

A  rack-rent  is  only  a  rent  of  the  full  value  of  the  tenement,  or  near- 
ly so.(>i) 

Rents  of  assize  are  the  established  rents  of  the  freeholders  and  copyholders 
of  a  manor  ;  they  are  termed  chief-rents  when  payable  by  the  freeholders, 
and  quit-rents  when  payable  by  either  freeholders  or  copyholders,  so  called 

(c)  Plowd.  134,  ('/)  1  Inst.  143,  b. ;  2  Roll.  Abr.  449. 

{c)  1  Inst.  147,  a.  (/")  See  Prec.  Conv.,  Append.  No.  xviii. 

Ig)  1  Inst.  169,  a.  {It)  Bacon  on  Uses,  43;  Rivett  v.  Godson,  W.Jo.  179. 

(?)  Litt.,  s.  218  ;  1  Inst.  153.                                         {k)  2  Dong.  G05. 
(Z)  Bract.  86  ;  Britt.  164,  b. ;  F.  N.  B.  86 ;  1  Inst.  144,  a. ;  and  see  also  Harg.  Co.  Litt, 
144,  a., n.  (5\ 

(//?)  Harg.  Co.  Litt.,  sup.  See  also  Bradbury  v.  Wright,  2  Dougl.  602. 
(«;  2  Comm.  42. 


(1)  The  want  of  a  reversion  remaining  was  recognised  as  destroying  the  right  of  dis- 
tress  in  Ege  v.  Ego,  5  W.  138  ;  and  in  Dichtenthalcr  v.  Thompson,  13  S.  &  R.  157,  the  ces- 
sation  of  the  title  as  landlord  produced  the  same  effect;  and  though  fealty  or  other  feudal 
incidents  may  be  taken  away,  yet  the  right  of  distress  remains  as  before.  Cornell  v. 
Lamb,  2  Cow.  657.  The  right  of  distress  is  extended  to  these  rents  in  N.  Y.  by  statute. 
Rev.  Stat.  T.  747  ^  18-22.    3  Kent's  Cora.  461. 


CREATION    AND    RESERVATION     OF     RENT.  131 

because  the  tenant  thereby  gets  quit  and  free  of  all  other  services.(o)  Pay- 
ment of  a  rent  to  the  lord  of  a  manor  for  a  series  of  years  is  evidence  only 
a  title  to  the  rent,  but  not  to  the  land  in  respect  of  which  the  rent  is  paid ;(;:)) 
the  presumption,  however  is,  that  such  a  rent  is  a  quit-rent. (/)) 

Viscontiel  rents  are  such  as  were  formerly  received  by  the'^heriff  before 
the  3  &  4  Wm.  4,  c.  99,  which  relieves  him  from  accounting  for  such  rents. 
(See  Dig.  P.  i.  tit.  Accounts.)  All  these  rents  are  continued,  with  other 
manorial  rights,  by  the  12  C.  2,  c.  24,  s.  5,  which  abolishes  military 
tenures. 

155.  There  is  also  another  kind  of  rent  which  is  sometimes  called  fore- 
hand rent,  or  foregift,  but  more  usually  a  fine,  which  is  a  premium  given  by 
the  tenant  at  the  time  of  taking  the  lease,  as  on  the  renewal  of  leases  by 
ecclesiastical  corporations,  which  is  considered  in  the  nature  of  an  improved 

Sometimes  a  covenant  is  inserted  in  leases,  that  the  lessee  shall  forfeit  a 
certain  sum  on  non-payment  of  rent,  or  on  doing  certain  things,  as  ploughing 
up  ancient  meadow  *and  the  like.     This  is  called  a  nomine  poense,  ^^ytI'] 
or  a  penal  rent,  and  being  incident  to  the  rent  is  said  to  descend  to  L 
the  heir.(r) 


II.  Crrattou  antr  Sicstr^atioii  ti  Mciit. 

1.  By  lohat  words  and  in  what  manner  Rent  may  be  reserved. 

^157    Mode  of  reserving  3  Rent-scrvlcc.  §158.  Several  Rents  reserved  in  the  same 

Deed. 
159.  Reservation  of  a  Rent-charge. 

2.   To  whom  the  Reservation  may  he  made. 


160.  To  the  FeofFor,  &c. 

161.  To  the  Lessor  himself. 

162.  General  Reservation. 


1 63.  Particular  reservations. 
165.  Between  Joint-Tenants. 
To  Husband  and  Wife. 


3.   Upon  what  Conveyances  Rent  may  be  reserved. 


166.  Oil  Conveyances  generally. 
Not  where  no  Estate  passes. 
Where  an  Estate  is  confirmed. 

167.  Oil  a  Bargain  and  Sale. 

168.  Distinction   between   a  Lease  and  a 
Foeffment. 


169.  Rent  not  to  be  reserved,  when. 

Conveyance  that   enures  by  way  of 

Extinguishment. 
Feoffment. 

Agreement  for  a  Lease. 
Fines. 


4.   Upon  w'hat  things  Rent  may  be  reserved,  or  out  ofivhat  it  may  issue. 


170.  General  Rule. 

Rent    may    issue    out    of    corporeal 
Things. 


171.  But  not  out  of  incorporeal  Heredita- 
ments. 
Commons. 


.  (0)  1  lust.  144,  a, ;  Gilb.  on  Rents,  33.  (p)  Doc  v.  Johnson,  Gow,  173 

{q)  S.-j   Irish  Society  v.  Nccdham,  1  T.  R.  496;   Wynne   v.  Biniptoa,    3  Atk.  473; 
Southall  v.  Leidbetter,  3T.  R.  461,462.  ^,      ^    or    . 

(,-)  Inst.  162.    Bat  see  Tiiina  v.  Chomley,  Cro.  El.  333;  Egcrton  v.  Slieafc,  2  Lutw. 

1151. 


132  crabb's  law  of   real  property. 


172.  Tithes. 

Not  to  issue  out  of  a  Hundred. 
Not  out  of  Rent, 


Not  out  of  a  Terra  for  Years. 

173.  Exceptions. 

174.  The  Crown. 


5.  Reservations  upon  Leases  made  under  Powers. 


175.  Amount  of  Rent. 

176.  Mode  of  Reservation. 

177.  Rent  must  be  certain. 


177.  Time  of  Payment. 
Entire  or  distinct. 
Reservations. 


§156.  Under  this  head  may  be  considered — 1.  By  what  words  and  in 
P*i»qT  what  manner  a  rent  maybe  created  or  reserved  ;  *2.  To  whom  the 
L  J  reservation  may  be  made;  3.  Upon  what  conveyances  rent  may  be 
made  ;  4.  Upon  what  thincrs  reservation  may  be  made,  or  out  of  what  rent 
may  issue  ;  5.  Reservations  in  leases  made  under  powers. 

1.  By  what  Words  and  in  what  Manner  a  Rent  may  he  created   or 

reserved. 

157.  The  creation  or  reservation  of  rent  may  be  considered  as  respects 
a  rent-service  or  a  rent-char"-e. 

A  rent-service,  being  something  in  retribution  for  the  land  demised,  must 
be  reserved  by  such  words  as  imply  a  return  of  something  which  was  not 
in  the  grantor  before,  in  lieu  of  the  land  given,  and  therefore  is  properly 
reserved  by  the  words  reservando,  reddendo,  &c.  ;'s)  so,  the  words  in  a 
demise  "provided  the  lessee  shall  pay"  are  a  good  reservation  ;(/)  so,  if 
lands  be  leased  to  A.,  and  he  covenant  and  grant  to  render  and  pay  for  the 
said  lands  every  year  during  the  said  term  £10,  this  amounts  to  a  reserva- 
tion ;(?<)  so  if  a  man,  in  consideration  of  rent  after  mentioned,  lets,  and  the 
lessee  covenants  to  pay  so  much  rent,  without  any  reddendum,  it  will  be  a 
good  reservation. (a:)  (1) 

But  if  a  lease  be  made  "  excepting"  so  much  rent,  this  will  not  be  a  good 
reservation,  because  this  word  implies  a  reservation  to  the  lessor  of  some- 
thing then  in  his  possession,  and  which  would  otherwise  pass  by  the 
lease  •,(y)  so,  if  a  man  makes  a  lease  "  saving"  20.5.  rent,  this  is  not  a  good 
reservation,  because  there  can  be  no  saving  of  anything  not  in  being. (;2) 

158.  Where  several  rents  are  reserved  in  the  same  deed  there  is  this  dif- 
r*l74~l  f6''C"C'  ^^^^  where  the  rent  is  reserved  *enlire  in  the  reddendum, 
<-         -'  there  though  the  rent  be  after  apportioned  to  the  several  parcels 

(s)  Plowd.  143  ;  1  Inst.  17,  a. ;  Glib,  on  Rents  30. 
(<)  Harrington  v.  Wise,  Cro.  El.  486;  S.  C,  i\Ioor,  459. 

(w)  Plowd.  31  ;  Hob.  3.-) ;  Drake  v.  Mnndav,  Cro.  Car.  207  ;  S.  C,  W.  Jo.  931.     See  also 
Moor,  861  ;  Noy,  14;  Palm.  CO;  Cro.  Jac.  34,  42,  &c. ;  Roll.  Rep.  80;  2  Bulst.  281. 
(z)  Moor,  45 J  ;  2  Roll.  Abr.  4  i),  1.  3.5,  40.     (y)  Petk.,  s.  633.     (z)  2  Roll.  Abr.  449. 

(1)  Mem.  That  A.  hath  let  to  B.  and  his  heirs  at  the  rate  of  §1.5  per  acre  to  be  pnid  by 
B.  and  his  heirs,  creates  a  rent-service.  Krider  v.  Lalferty,  1  Whart.  304.  Wjiatcvcr 
words  are  sufficient  to  explain  the  intent  of  the  parties  that  one  should  divest  him.«clf  of 
the  property  and  the  other  come  into  it  f  )r  a  determinate  period,  whether  they  run  in  the 
form  of  a  lieens",  covenai\t  or  aT-reemcnt,  will  in  construction  of  liw  amount  to  a  lease, 
as  if  tlie  most  proi>er  words  had  been  used.     Watsoa  v.  O'Hern,  6  W.  363. 


I 


CREATION    AND     RESERVATION     OF    RENT.  133 

leased,  yet  the  reservation  shall  be  taken  as  one  and  entire,  but  it  is  other- 
wise where  the  rent  is  not  reserved  entire,  for  then  the  rent  is  several  and 
apportioned  to  the  several  things  demised  ;(«)  and  as  there  may  be  several 
reservations  in  the  same  lease  by  the  words  of  the  parlies,  so  there  may  be 
by  act  of  law,  as  where  a  lease  for  life  is  made  to  a  bishop  in  his  public 
capacity,  and  to  J.  S.,  reserving  a  rent;  the  lessees  in  that  case  are  not 
joint-tenants,  but  tenants  in  common,  and  therefore  the  reservation  of  the 
rent  must  be  several  too,  and  the  reversion  to  which  the  rent  is  incident  must 
follow  the  nature  of  the  particular  estates  on  which  it  depends  ;(i?')  so,  if 
there  be  two  tenants  in  common,  and  they  make  a  lease  for  life  rendering 
rent,  this  reservation,  though  made  by  joint  words,  shall  follow  the  nature 
of  the  reversion,  which  is  several  in  the  lessors,  and  therefore  it  has  been 
held,  that  they  should  be  put  to  their  several  assizes,  if  they  had  been  dis- 
seised, as  if  there  had  been  distinct  reservations. (c) 

159.  The  usual  and  proper  way  of  creating  a  rent-charge  is,  in  the  words 
of  Littleton,  "  When  a  man  seised  of  lands  grants,  by  deed-poll  or  indenture, 
a  yearly  rent  issuing  out  of  the  same  land,  to  another  in  fee,  in  tail  or  for 
life,  with  a  clause  of  distress,  this  is  a  rent-charge  ;"(^/)  and  even  since 
the  Statute  of  Quia  Empfores,  if  a  man  make  a  feolTment  in  fee,  reserving 
rent,  and  if  the  rent  be  behind,  that  it  shall  be  lawful  for  him  to  distrain,  it 
is  a  rent-charge  ;  and  so  the  law  creates  a  rent-charge  in  many  other  cases 
where  there  are  no  words  of  granting,  it  being  the  design  of  the  law  to  ren- 
der contracts  binding,  so  far  as  the  intention  of  the  parties  may  be  collected 
from  the  deed  ;(c)(l)  *therefore,  if  a  man  bind  himself  to  J.  S.  in  an  ,-^-,^n~\ 
annual  rent,  to  be  yearly  issuing  out  of  such  a  manor,  and  subject  the  L  -^ 
said  manor  and  all  the  chattels  therein  to  a  distress,  this  amounts  to  a  good 
grant  of  the  rent,  and  J.  S.  may  distrain  for  it ;(/)  but  if  a  man  grant  a  rent 
of  40s.  out  of  the  manor  of  D.,  and  if  the  rent  be  behind  that  the  grantee 
shall  distrain  in  the  manor  of  S.,  this  power  of  distress  out  of  the  manor 
will  not  amount  to  the  grant  of  a  rent-charge  out  of  such  manor,  for  here  is 
a  plain  grant  of  rent  out  of  the  manor  D.,  and  the  distress  is  given  in  S. 
only  as  a  means  for  the  recovery  of  it.(^^) 

But  if  a  rent  be  granted  to  A.,  and  ihat  if  the  rent  be  behind  a  stranger 
shall  distrain  for  it  for  the  use  of  the  grantee,  this  is  a  good  grant  of  a  rent- 
charge  to  A.,  the  power  of  distress  being  given  to  the  stranger  for  his  bene- 
fit ;(/t)  so,  if  A.  leases  a  manor  for  life,  rendering  rent,  and  afterwards  grants 
this  rent  in  fee  to  another,  to  have  after  the  death  of  tenant  for  life,  with 
power  to  dislrain  for  it,  this  is  a  good  grant  of  a  rent  charge  in  fee  ;(/<)  so,  if 
A.  grant  to  B.  a  rent  of  £5,  to  be  taken  out  of  his  lands,  which  rent  A.  has 
of  the  grant  of  his  father,  though  A.  had  never  such  rent  from  the  grant  of 
his  father,  yet  this  grant  of  A.'s  shall  be  good  to  create  a  rent-charoe  in  B., 
and  a  mistake  in  the  description  of  the  thing  referred  to  shall  not  render  the 
contract  ineffectual, (i)  ^ 

a)  Dy.  309;  Hob.  172;  Monr,  51,  190;  1  AndcrK.  173;  3  Leon.  124, 
(//)  Moor,  2;)2.     (c)  1  Inst.  207,  a.     (il)  Litt.,  s.  218.     (f)  PImvd.  134  ;  1  Inst.  170,  a. 
(  f)  Roll.  Abr.  424.     (e-)  Butt's  case,  7  Co.  24  ;  1  Inst.  147,  a. ;  2  Roll.  Abr.  425, 
(h)  2  Roll,  Abr.  425,     (•)  B.-o.  tit.  Grant,  6:1,  73 ;  2  Roll.  Abr.  425, 


(1)  Can  only  be  created  in  Pennsylvania  by  a  grant  of  an  annual  sum  of  land  with  a 
clause  of  distress.     Cuthbert  v.  Kuhn,  3  Whart.  357. 


134        crabb's  law  of  real  property. 

Again,  if  a  man  seised  of  twenty  acres  of  land  grant  a  rent  of  20s.  to  be  issu- 
ing oiu  of  a  certain  acre  of  liis  land,  or  out  of  every  acre  of  his  land,  this  is  in 
the  nature  of  a  several  grant  out  of  every  acre,  for  the  grant  shall  be  taken 
most  strongly  against  the  grantor,  and  the  grantee  shall  have  20s.  out  of  each 
acre;(ji")  and  so,  if  there  be  two  tenants  in  common,  and  they  grant  a  rent 
of  20s.  per  annum  out  of  their  land,  the  grantee  shall  have  40s.  rent ;  for 
^!l|,■^~f,-^  *as  their  estate  is  several,  so  shall  their  grant  be  too,  and  therefore 
L         -^  each  shall  be  taken  to  grant  a  several  rent  of  2Qs.{k) 

2.   To  whom  the  reservation  may  be  made, 

160.  As  a  rule,  no  rent  (which  is  properly  said  to  be  rent)  may  be 
reserved  to  any  but  the  feoffor,  donor,  lessor,  or  his  heirs,  and  in  no  manner 
may  it  be  reserved  to  a  stranger,(/)  (1)  for  it  ought  to  be  made  to  him  from 
whom  the  land  passes  ;(/)  therefore,  if  a  father  seised  in  fee  leases  rendering 
rent  to  his  son,  it  is  void,  for  the  son  takes  as  a  purchaser,  and  is  quasi  a 
stranger ;  it  should  therefore  be  to  the  heir  of  the  lessor  ;(m)  but  if  a  man 
makes  a  lease  to  commence  after  his  death,  reserving  rent  to  his  heirs,  this 
will  be  deemed  a  good  rent-service  arising  in  the  heir,  not  by  way  of  pur- 
chase, but  as  incident  to  the  reversion  descending  to  the  heir,  and  therefore 
may  be  released  by  the  ancestor  during  his  life,  which  it  could  not  be,  if  it 
was  a  new  purchase  in  the  heir.(n)  So,  a  man  may  reserve  a  rent  to  him- 
self for  life  and  a  different  rent  to  his  heir,(o)  or  he  may  reserve  rent  to  his 
heir  omitting  himself.(o) 

The  Q,ueea  is  an  exception  to  this  rule,  for  she  may  make  reservation  of 
rent  to  a  stranger ;(/})  therefore,  where  the  King  made  a  lease  of  a  house 
belono-in^  to  his  housekeeper  of  Whitehall,  reservino-  a  rent  to  the  house- 
keeper  for  the  time  being,  though  in  this  case  it  was  admitted  that  the  King 
might  reserve  rent  to  a  stranger,  yet,  it  being  here  made  to  an  officer  who 
was  removable  at  will,  the  reservation  was  held  ill.((7) 

161.  As  a  lessor  can  reserve  rent  to  no  other  than  to  himself,  if  two  joint 
ps^.,^^-.  tenants  made  a  lease  by  parol  or  deed-poll,  *rescrving  rent  to  one  of 
L  -^  them,  this  should  enure  to  them  both;  but  if  so  reserved  by  deed 
indented,  it  should  enure  to  him  alone  by  way  of  conclusion  ;(r)  and  the 
reason  for  the  difference  is  this,  that  when  the  lease  is  by  deed-poll,  the  rent 
shall  follow  the  reversion,  which  is  jointly  in  both  lessors;  but  where  the 
lease  is  by  indenture,  the  parties  are  estopped  to  claim  the  rent  in  any  other 
manner  than  as  it  is  reserved  by  the  deed,  because  the  indenture  is  the  deed 
of  each  party,  and  no  man  shall  be  allowed  to  recede  from  or  vary  his  own 
solemn  act.(s) 

162.  A  reservation  may  be  either  general  or  particular. 

Where  a  reservation  of  the  rent  is  general,  the  law  directs  that  it  shall  be 

(/)  1  Inst.  147. 

(k)  Plovvd.  140,  IGl  ;  Justice  Wyndham's  case,  5  Co.  7  b.;  1  Inst.  1D7,  a,  5G7,  b. 
(J.)  1  Inst.  143,  b;  Gilb.  on  Rents,  45. 

(m)  Cites  V.  Frith,  Hob.  133;  1  Inst.  47,  a,  143,  b;  Saclirverell  v.  Fro^rorat,  2  Sauad. 
370.  In-)  2  Roll.  Abr.  4 17  ;  and  see  2  Saund.  370.  (o)  1  Inst.  213. 

ip)  1  Inst.  143;  2  Roll.  Abr.  4  17.         (n)  Anon.,  1  I,d.  Ravm.  36.  <r)  1  Inst.  47,  a. 

(s)  S.ichcvcrcll  v.  Fro^gatt,  1  Ventr.  Itil ;  2  Roll.  Abr.  417. 

(1)  Ege  V.  Ege,  5  W.  134. 


CREATION     AND     RESERVATION    OF     RENT.  135 

carried  over  according  to  the  intent  and  the  nature  of  the  thing  demised  ;{() 
(1)  therefore  if  a  tenant  in  tail  makes  a  lease  for  years,  rendering  rent  to 
him  and  his  heirs,  it  was  held,  that  the  rent  should  go  to  the  heir  in  tail 
along  with  the  reversion,  for  the  law  uses  all  industry  imaginable  to  conform 
the  reservation  to  the  estate  ;{()  so,  where  tenant  for  life,  with  several  Hmita- 
lions  over  and  wiih  power  to  moke  leases,  demises,  reserving  rent  to  him 
and  his  heirs,  it  was  adjudged  that  it  should  belong  to  him  in  remainder  ;(i/) 
so,  Avhere  the  words  are  general,  they  will  be  expanded  according  to  law  ; 
therefore,  if  tenant  in  tail  to  him  and  the  heirs  male  of  the  body  of  his  father 
lets  the  land,  rendering  rent  to  him,  his  heirs  and  assigns,  the  rent  shall  go 
to  the  heir  male  of  the  body  of  the  father,  though  he  be  not  heir  to  the  lessor, 
for  it  is  incident  to  the  reversion. (y) 

163.  Where  the  reservation  is  particular,  as  to  the  lessor,  without  going 
further,  or  to  the  lessor  and  his  assigns,  there  it  is  said  that  the  rent  shall 
determine  with  his  death,  though  the  lease  upon  which  it  is  reserved  be 
still  continuing,  for  *the  reservation  is  good  only  during  his  hfe,  p*j.^g-] 
and  it  shall  never  be  carried  further  than  the  period  of  time  the  L 
lessor  himself  has  fixed  for  it  ;{x)  but  upon  this  point  there  is  some  diver- 
sity in  the  books,  see  10  E.  4,  18 ;  1  Dy.  45  a. ;  1  Inst.  47  a. ;  for  Little- 
ton in  the  case  cited  was  of  a  contrary  opinion,  and  held  that  » if  I  let  land 
to  a  man  for  a  term  of  years,  rendering  to  me  a  certain  rent,  without  saying 
and  to  my  heirs,  yet  if  I  die  within  the  term,  my  heir  shall  have  the  rent, 
for  it  is  annexed  to  the  reversion,  which  is  descended  to  my  heir."(7/) 

So,  where  a  man  makes  a  lease,  reserving  a  rent  in  the  alternative  to  him 
or  his  heirs,  held,  that  the  rent  determined  at  his  death  ;{z)  sed  secus  where 
an  abbot  made  a  lease  reserving  rent  to  him  or  his  successor  during  the 
term,  (a) 

164.  Where  the  reservation  is  special  and  to  improper  persons,  there  the 
law  follows  the  words ;  therefore  if  rent  is  reserved  to  the  lessor  and  his 
executors,  he  having  the  freehold,  it  vviU  determine  at  his  death,  because 
the  reversion,  lo  which  the  rent  is  incident,  descends  to  the  heir  ;{b)  so,  if  a 
lease  be  made  of  a  term  for  years,  reserving  rent  to  the  lessor  and  his  heirs, 
such  rent  will  determine  by  the  death  of  the  lessor,  for  the  heir  cannot  have 
it,  as  he  cannot  succeed  to  the  estate,  being  only  a  chattel,  and  the  executor 
cannot  have  it,  there  being  no  words  to  carry  it  to  him.(c)  But  the  words 
"during  the  term"  have  been  held  sufficient  to   carry  the  rent  to  the  heir, 

(0  Sacheverell  \.  Frog^att,  sup.  (")  Whitlock's  case,  8  Co.  70  b. 

{v)  Cother  v.  Merrick,  Hardr.  91,  05.  (x)  lb.  91. 

(w)  10  E.  4,  18.  See  also  Noy,  96 ;  Sury  v.  Brown,  Latch.  100 ;  S.  C,  2  Roll.  Abr.  451. 
See" further,  infra,  §  164.  (z)  1  Inst.  214. 

(a)  Mallory's  case,  Cro.  El.  804.  (h)  2  Roll.  Abr.  450. 

(c)  1  Inst.  47, a.;  Sacheverell  v.  Froggatt,  1  Vent.  161. 

(1)  Johnston  v.  Smith,  .3  Pcnna.  500.  It  is  not  essentially  annexed  to  a  reversion  :  thus 
v;here  a  tenant  for  life  leased  to  the  reversioner,  there  is  no  merger,  but  covenant  lies, 
M'Murphy  v.  Minot,  4  N.  H.  251  ;  and  it  is  not  severed  by  a  marriage  with  a  feme  lessor 
for  years,  but  the  rent  reserved  passes  with  the  reversion.  Condie  v.  Neighbor,  8  Green. 
83.  Nor  can  it  be  separated  by  an  execution  creditor  ;  lie  must  extend  the  fee  in  the  land 
and  the  rent  will  pass  as  an  incident  to  it.     Montague  v.  Gay,  17  Mass.  439. 


136  crabb's  law   of   real   property. 

where  the  lessor  was  seised  in  fee,((Z)  and  for  the  same  reason  if  a  termor 
for  fifty  years  leases  for  twenty-five  years,  though  reserving  rent  to  him  and 
his  heirs  during  tlie  term,  yet  the  executors  shall  have  the  rent  ;(e)(l)   so, 
^  where  no  reversion  is  left  in  the  lessor,  and  the  *rent  is  reserved  to 

L  J  his  executors,  administrators,  and  assigns,  it  will  go  to  them  and  not 
to  the  heir;(/)  but  if  the  reservation  be  to  the  lessor  and  to  such  persons  to 
whom  the  reversion  and  inheritance  belong  during  the  term,  this  is  a  good 
reservation  to  those  in  remainder,  and  the  law  will  distribute  the  rent 
according  to  the  several  interests  under  the  settlement. (g-) 

165.  If  two  joint  tenants,  the  one  for  life  and  the  other  in  fee,  join  in  a 
lease  for  life  or  a  gift  in  tail,  reserving  rent,  the  rent  shall  enure  to  them 
both,  for,  if  the  particular  estate  determine,  they  shall  be  joint  tenants  again 
in  possession  ;(/i)  but  if  tenant  for  life  and  he  in  the  reversion  join  in  a  lease 
for  life,  reserving  rent,  this  shall  enure  to  the  tenant  for  life  only  during  his 
life,  and  after  to  him  in  the  reversion. (A) 

Where  husband  possessed  of  a  term  for  years  in  his  own  right  joins  with 
his  wife  in  an  assignment  of  the  term,  reserving  rent  to  him  and  his  wife, 
and  the  survivor  of  them,  but  the  wife  neither  signed  nor  sealed  the  deed, 
it  was  held  that  this  rent  determined  by  the  death  of  the  husband,  because 
she  had  no  interest  in  the  land;(i)  but  where  A.  in  pursuance  of  a  power  in 
his  marriage  settlement  made  leases  of  several  parts  of  his  estate  which 
were  settled  on  his  wife,  it  was  held  that  the  rent  should  go  to  the  jointress 
as  incident  to  the  reversion,(y)  see  further,  as  to  whom  rent  is  payable, 
post,  §  197. 

3.   Upon  what  Conveyances  Rent  may  he  reserved. 

166.  Rents  are  usually  reserved  on  leases,  but  they  may  be  reserved 
upon  every  conveyance,  that  either  passes  an  estate  to  the  tenant,  or  en- 
r*lftn1  '^''a*-'^  •'^'^  estate  already  in  him  ;(/c)  *but  where  no  estate  passes 
^  ^  there  ought  to  be  no  rent,  the  rent  being  a  retribution  or  return  for 
something  given, (/)(2)  therefore  if  there  were  lord  and  tenant,  and  the  tenant 
held  of  the  lord  by  fealty  and  lO.s.  rent,  and  the  lord  released  to  the  tenant 
or  confirmed  his  estate,  he  yielding  to  the  lord  a  hawk  or  rose  yearly,  this 
new  reservation  was  held  void,  because  there  was  no  estate  given  to  the 
tenant,  for  which  he  should  make  that  new  return  of  service  to  the  lord  ;(/n) 

{d)  lb.  overruling  Richmond  and  Butcher's  case,  Cro.  El.  217,  and  recognizin<r  Sury  v. 
•  Brown,  Latch.  10!). 

(e)  1  Ventr.  162.  >  (/")  Jcnison  v.  Lexington,  1  P.  Wms.  555. 

is)  8  Co.  71.  (A)  1  Inst.  211,  a, 

(/)  Blaad  V.  Inman,  Cro.  Car.  288 ;  S.  C,  W.  Jo.  308 ;  .3  Roll.  Abr.  450. 
ij)  Ld.  Rockingham  v.  Penricc,  1  P.  Wins.  177  ;  S.  C,  2  Salk.  578  ;  recognising  Clun'a 
case,  10  Co.  127. 

(A)  10  E.  4,  3;  21  H.  6,  8;  1  Inst.  144,  a.;  2  Roll.  Abr.  4  tO ;  Gilb.  on  Rents,  26. 
(Z)  lb.  {m)  Litt.,  s.  438 ;  Dy.  33U  ;  Moor,  631. 


(1)  Williamson  v.  Richardson,  6  Monr.  605. 

(2)  Nor  will  it  be  creited  by  an  agreement  to  convey  for  a  price  to  be  paid  in  money  or 
by  rents  to  be  reserved  on  conveyances  of  parcels  of  Uie  land,  even  though  the  articles 
stipulate  that  the  grantor  until  suc'i  settlement  shall  have  all  tiic  remedies  as  arc  u-ual  in 
ground-rent  deeds  ;   for  to  con?titute  such  a  rent,  there  must  be  a  conveyance  of  the  land, 

until  that,  it  remains  purchase-money.     Moroney  v.  Copeland,  5  Whart.  407. 


CREATION     AND     RESERVATION    OF     RENT.  137 

tut  if  there  be  tenant  for  life,  and  he  in'the  reversion  release  to  him  in  tail, 
reserving  rent,  the  reservation  is  good,  because  the  tenant's  estate  is  enlarged 
by  the  release  ;(n)  so,  if  the  lord  of  a  manor  by  indenture  at  common  law 
releases  to  his  copyholder  in  fee,  to  him  and  his  heirs,  or  confirms  such 
lands  to  his  cof)yholder  and  his  heirs,  reserving  a  rent,  this  reservation  is 
good,  because  the  release  or  confirmation  enures  by  way  n{  initfer  le  csfafe 
to  pass  an  estate  at  common  law  to  him,  when  before  he  had  but  a  copyhold 
estate  ;(o)  and  so,  in  other  cases  upon  releases  which  enure  by  way  of 
miller  le  estate,  as  by  one  joint  tenant  to  another,  a  rent  may  be  reserved  ;(^) 
but  upon  a  release  or  confirmation  which  enures  by  way  of  mitter  le  droit 
only  no  rent  can  be  reserved,  because  such  release  operates  by  way  of 
extinguishment. (;;) 

167.  At  common  law  no  rent  could  have  been  reserved  upon  a  bargain 
and  sale,  because  only  a  use  passed,  which  was  not  any  estate  to  which  the 
bargainor  could  have  had  recourse  for  a  distress,  but  now  by  the  Statute  of 
Uses,  the  use  and  possession  passing  together,  it  amounts  to  a  grant  of  the 
land  itself,((7)  and  the  reservation,  as  if  out  of  the  estate  executed  by  the 
statute,  will  not  be  deemed  a  use  ui)on  a  use;(r)  so,  on  the  same  principle, 
it  has  been  held  that  ''a  rent  may  be  reserved  upon  a  covenant  to  ^5^,01-1 
stand  seised,  as  where,  in  consideration  of  natural  love,  a  man  cove-  L  -' 
nanted  to  stand  seised  of  certain  lands  to  the  use  of  himself  for  life,  with 
remainder  over,  and  to  the  intent  that  his  son  should  have  a  rent  during 
his  father's  life,  it  was  held,  that  the  son  had  a  good  rent  upon  such  a  cove- 
nant as  upon  a  feoffment. (s)     As  to  limiting  a  rent  to  uses,  see  ante,  §  159. 

168.  It  seems  that  the  effect  of  reserving  rent  upon  a  lease  or  a  gift  in 
tail  and  upon  a  feoffment  is  not  in  all  cases  the  same.  If  a  man  seised  of 
land  on  the  part  of  his  mother  makes  a  lease  or  a  gift  in  tail,  reserving  rent 
to  him  and  his  heirs,  this  rent  shall  go  wiih  the  reversion  to  the  heirs  on  the 
part  of  the  mother,  because  the  nature  of  the  contract  is  such  that  the  retri- 
bution should  go  to  those  who  lose  the  profit  of  the  land  during  the  gift  or 
lease  ;(/)  but  if  in  like  case  he  had  made  a  feoffment  in  fee,  reserving  rent 
to  him  and  his  heirs,  the  rent  in  thai  case  would  go  to  the  heir  on  the  part 
of  the  father,  because  here  is  an  entire  disposition,  and  the  rent  is  in  the 
nature  of  a  new  purchase,  coming  into  the  family  from  the  grant  of  the 
feoffee,  and  therefore  the  blood  of  the  father  shall  be  preferred. (/j(l) 

169.  There  can  be  no  rent  reserved  upon  any  conveyance  that  enures  by 

(n)  10  E.  4,  3  ;  1  Inst.  193  ;  Gilb.  on  Rents,  27. 
(0)  Samme's  cnse.  13  Co.  5.5.  ( p)  1  Inst.  193. 

(7)  Weeks  v.  Tillarci,Cro.  El.  595  ;  1  Inst.  144,  a.    See  also  Piittcnham's  case,  1  And.  18. 
(rj  Cromwel's  case,  2  Co.  72  b.      See  also  Dy.  362 ;  Choniley's  case,  2  Co.  54  ;  2  Inst. 
273 ;  Vaugh.  52 ;  Gilb.  on  Uses,  Suyd.  cd.,  8ti,  n.  (3.) 

(s)  Revitt  V.  Godson,  W.  Jo.  179.  (/)  1  Inst.  12. 


(1)  And  such  a  conveyance  is  a  revocation  of  a  will,  and  the  rent  reserved  does  not  pass 
thereby,  Skerrett  v.  Eurd,  1  Wiiait.  2-J6;  and  it  is  such  an  entire  alienation  of  the  land 
that  on  conveyance  o.  wie's  lands,  rcsirving  a  lent  to  husband  and  wife  and  their  heirs, 
the  rent  vests  iu  the  husband,  surviving  the  wile,  in  fee.    Eobb  v.  Beaver,  8  W.  vt  S.  107. 


138        crabb's  law  of  real  property. 

way  of  extingll^shment,(^<)  because  in  such  case  there  is  no  reversion  left  in 
him  to  create  a  tenure  ;  therefore  if  a  lessee  surrendered  his  estate,  reserving 
rent,  this  reservation  was  held  not  to  be  good  ;(.r)  but  such  a  reservation  may- 
be good  by  way  of  contract,  and  an  action  of  debt  may  be  brought  upon 

it-(.V)(l) 

So,  where  a  rent  is  reserved  upon  a  feoffment,  and  the  feoffor  has  no  re- 

-,  version,  yet  this  is  a  rent,  and  is  *recoverable  by  the  name  of  rent 

L         -^  upon  the  contract. (?)    And  so,  where  an  assignee  has  assigned  over 

a  term,  rent  may  in  that  case  be  recoverable  against  the  second  assignee. (z) 

So,  an  agreement  for  a  lease  at  a  rent  certain  is  not  a  sufficient  reserva- 
tion of  rent,  so  as  to  constitute  a  demise,  and  therefore  if  a  party  be  let  into 
possession  under  such  an  agreement,  he  cannot  distrain,  although  he  may 
have  an  action  of  debt,(fT)  see  further,  1  Prec.  in  Conv.  tit.  Agreements. (2) 

So,  a  rent  could  not  be  reserved  on  a  fine  sur  cognisance  de  droit  come 
ceo  or  any  other  fine  which  was  executed ;  scd  necus  where  an  estate  for 
life  only  was  conveyed  by  the  fine. (6) 

4.  Upon  what  Things  Rent  may  he  reserved,  or  out  of  what  it  may  issue. 

170.  It  is  laid  down  as  a  rule,  that  a  rent  cannot  issue  out  of  anj'^  inherit- 
ance but  such  as  is  said  to  be  manurabic,  wherein  an  entry  may  be  made 
and  distress  taken,  as  lands  and  tenements  ;  therefore  a  lease  for  the  verdure 
or  herbage  of  the  land,  reserving  rent,  is  good,  for  the  lessor  may  enter  upon 
the  land  to  distrain  ;(c)  but  the  grant  of  a  rent-charge  out  of  land,  of  which 
the  grantor  is  not  seised  at  the  time  of  the  grant,  is  void,  although  the  gran- 
tor should  afterwards  purchase  the' same  lands. (c/) 

171.  As  a  consequence  of  this  rule  no  rent  can  be  reserved  upon  any 
incorporeal  hereditament  or  thing  lying  in  grant,  because  to  such  things  re- 
course cannot  be  had  for  a  distress  ;(e)  therefore  no  rent  can  properly  be 
reserved  for  a  common,  as  the  common  belongs  to  many,  and  it  cannot  be 
r*i«*?1  ^'^ble  to  distress  by  the  act  of  one ;(/)  yet  by  the  *1 1  G.  2,  c.  19, 
^  -^  s.  8,  (see  Dig.  P.  iii.  tit.  Landlord  and  Tenant,)  it  is  provided  that 
a  landlord  or  his  steward  may  seize  as  a  distress  for  rent  cattle  of  his  tenant 
feeding  upon  a  common. 

172.  Upon  the  same  principle  there  cannot  at  common  law  be  a  rent  re- 

(m)  Samtne's  case,  sup.  (x)  2  Roll.  Abr.  491. 

(y)  Winston  v.  Pinkney,  2  Lev.  80;  S.  C,  1  Vent.  242;  2  Danv.  501  ;  rccogrnised  in 
Brownlow  v.  Hewley,  1  Ld.  Raym.  82.  See  also  Cro.  Jac.  487  ;  Allen,  57  ;  4  Mod.  174; 
Gilb.  on  Rents,  29.  («)  Ncwcomb  v.  Harvey,  Carth.  162. 

(a)  Hegan  v.  Johnson,  2  Taunt.  148  ;  Dunk  v.  Hunter,  5  B.  &,  A.  .322.' 

(/>)  Bro.  Abr.  tit.  Fines,  p.  30 ;  Roll.  Abr.  tit.  Fine,  O.,  p.  10. 

(c)  1  Inst.  47,  a.  ((/)  Perk.,  sect.  65. 

(e)  1  Inst.  142,  a.  (/)  Sanderson  v.  Harrison,  Cro.  Jac.  679. 

(1)  Ege  V.  Ege,  5  W.  138. 

(2)  See  Watson  v.  O'Hcrn,  6  W.  368,  ante,  173,  n.  1. 

The  distinction  between  an  agreement  lor  a  future  lease  and  a  lease  in  possession,  is 
recognized  in  Hnllct  v.  Wyley,  3  Johns.  44.  Thornton  v.  Payne,  5  Johns.  74.  Buell  v, 
C'oole,  4  Conn.  238. 

»Eng.  C.  L.  Reps.  vii.  115. 


CREATION     AND     RESERVATION    OF     RENT.  139 

served  upon  tithes,  because  there  is  no  place  upon  which  a  distress  may  be 
taken  ;(£;•)  but  an  action  of  debt  is  given  by  the  5  G.  3,  c.  17,  to  ecclesias- 
tical persons  for  arrears  of  rent  upon  leases  of  tithes,  &c. ;  so,  where  a  rent- 
charge  of  £20  was  devised  out  of  a  rectory,  the  glebe  whereof  amounted  to 
40s.  per  annum  only,  the  whole  rectory  was  in  equity  held  liable  to  the 
rent  ;(A)  so,  where  a  lease  was  made  of  land  and  tithes,  the  rent  was  held 
to  issue  out  of  the  land  and  not  out  of  the  tithes. (j) 

So,  neither  can  a  rent  issue  out  of  a  hundred,  fair,  office,  and  the  like,  for 
these  were  instituted  for  public  purposes  ;(A-)  so,  likewise  not  out  of  rent  ;(/) 
but  a  rent  reserved  on  a  lease  made  of  an  incorporeal  thing,  as  of  a  fair,  is 
good  by  Avay  of  contract  between  lessor  and  lessee. (m) 

So,  a  rent  must  be  reserved  out  of  an  estate  that  passes  by  a  conveyance, 
and  not  out  of  a  right ;  and  therefore  if  disseisse  release  to  the  disseissor  of 
land,  reserving  a  rent,  the  reservation  is  void.(n) 

So,  a  rent  cannot  issue  out  of  a  term  for  years,  therefore  the  lessee  having 
assigned  cannot  distrain, (o)(l)  but  he  must  bring  his  action  on  the  con- 
tract ;(o)  so,  if  a  lease  be  made  of  an  incorporeal  hereditament,  reserving 
rent,  such  reservation  is  good  to  bind  the  lessee  by  way  of  contract  for  the 
non-performance  of  which  the  lessor  shall  have  his  action  of  debl;(;;)  but 
*although  a  rent  cannot  issue  out  of  chattels,  yet  it  has  been  held,  p4;.iQi-| 
that  distress  may  be  made  for  the  rent  of  furnished  lodgings,  for  the  L  J 
rent  issues  out  of  the  realty  and  not  out  of  the  goods. (g')(2) 

173.  Although  reversions  and  remainders  are  incorporeal  hereditaments, 
and  can  pass  only  by  grant,  yet  a  rent  may  be  reserved  upon  a  lease  of  them, 
because  although  the  grantor  has  no  remedy  for  them  during  the  continuance 
of  the  particular  estate,  yet  there  will  be  a  remedy  by  distress  w^hen  they 
come  into  possession  ;(r)  so,  and  for  the  same  reason,  it  is,  if  the  lord  grants 
his  seignory,  reserving  rent,  for  here  is  a  prospect,  though  distant,  of  a  re- 
medy by  distress  upon  the  escheat  of  the  tenancy  ;(s)  so,  on  the  same  prin- 
ciple, if  a  man  grants  a  future  interest  in  land,  he  may  reserve  a  rent  imme- 
diately, for  he  may  have  his  remedy  by  distress  when  the  lessee  comes  into 
possession.  (^) 

174.  The  Crown  is  also  in  general  excepted  from  the  rule  above  men- 
tioned, and  the  queen  may  reserve  ronton  incorporeal  hereditaments,  because 

{g)  Valentine  v.  Donton,  Cro.  Jac.  111. 

{It)  Thorndike  v.  Allinton,  Chan.  Ca.  79  ;  Gilb.  on  Rents,  22. 

(»)  2  Roll.  Abr.  451.  (k)  Bro.  Abr.  tit.  Rent,  11  ;  Butt's  case,  7  Co.  23  b. 

(/)  Bro.  Abr.  tit.  Assize,  pi.  2  ;  Keilvv.  161 ;  2  Roll.  Abr.  446,  pi.  7. 

(m)  Jewell's  case,  5  Co.  3.  («)  50  E.  3,  9  ;  10  E.  4,  3  b ;  cited  1  Inst.  144,  a, 

(o)  V.  Cooper,  2  Wils.  375.     See  also  Smith  v.  Mapleback,  1  T.  R.  446. 

(p)  Dean  of  Windsor  v.  Glover,  2  Saund.  302. 

(7)  Newman  v.  Anderton,  2  N.  R.  226. 

(r)  Capel's  case,  1  Co.  62  b ;  1  Inst.  47,  a;  Gilb.  on  Rents,  24. 

(s)  2  Roll.  Abr.  446.     Sec  also  Ferk.  627  ;  Cro.  El.  546. 

(0  Plowd.  423;  Falstaff's  case,  2  Roll.  Rep.  467. 


(1)  Ege  V.  Ego,  5  Wend.  134. 

(2)  And  when  the  demise  is  of  land  with  a  slave,  it  will  be  apportionable  for  defect  of 
title  to  the  latter.    Newton  v.  Wilson,  3  H,  &-  Mun.  470.     Mickie  v.  W^ood,  5  Rand.  574. 


140  crabb's    law    of    real    property. 

she  may  distrain  in  all  the  lands  of  her  lessee  for  the  rent  ;(m)  but  if  the 
queen's  tenant  makes  a  lease  of  lands  not  holden  of  her,  either  for  years  or 
at  will,  she  cannot  distrain  such  lands  in  the  hands  of  an  under-lessee  ;(a;) 
so,  if  lands  are  extended  on  an  elegit,  or  are  under  sequestration,  they  are 
exempt  from  distress  ;  but  in  this  last  case,  upon  application  to  a  court  of 
equity,  liberty  will  be  given  to  distrain  without  incurring  a  contempt  of 
court.(aj) 

(^*185]  *5.  Reservation  upon  Leases  made  under  Powers. 

175.  (Questions  relating  to  this  subject  have  arisen  either  on  the  amount 
of  rent  or  the  mode  of  reservation.  Sometimes  a  power  is  given  of  leasing 
on  lives  and  upon  the  payment  of  fines,  as  the  lives  drop,  which  are  con- 
sidered among  the  annual  profits ;(?/)  but  the  more  usual  provision,  in  settle- 
ments, is  to  require  the  best,  rent  lo  be  reserved,  without  taking  any  fine  or 
foregift ;  and  whether  the  best  rent  has  been  reserved  is  commonlv  left  to 
the  decision  of  the  jurj':(z)  and  althourrh  the  best  rent  reserved  be  the  full 
value,  yet  if  satisfactory  evidence  can  be  produced  to  a  jury,  that  a  tenant 
was  willing  to  give  additional  rent  in  lieu  of  money,  agreed  to  be  laid  out  in 
improvements,  it  has  been  held  that  the  lease  could  noi  be  supported, (or) 
when,  from  the  quantity  and  nature  of  the  properly  demised,  it  is  not  pos- 
sible to  ascertain  whether  the  rent  reserved  is  the  best  rent,  the  lease  will 
be  deemed  invalid. (6) 

176.  If  a  fine  be  taken  contrary  to  the  terms  of  the  power,  the  lease  can- 
not be  supported  ;(f)  and  any  thing  in  the  form  of  a  premium  has  been 
held  to  come  within  the  prohibitory  clause. ((A 

Formerly  a  rent  under  leasing  powers  was  reserved  by  the  words  "the 
ancient  or  usual  rent,"  and  the  better  opinion  is,  that  by  these  words  is  to 
be  understood  the  rent  reserved  at  the  time  of  the  creation  of  the  power, 
r*l  8P1  ^^'^^^'^  ^  lease  was  then  in  being, or  reserved  in  the  lease  ^immediately 
L  -'  preceding  that  time,(e)  and  where  gold  has  been  usually  reserved, 
silver  cannot  be  made  payable  in  lieu  of  it  \[g')  so,  if  commonly  paid  at  four 
days,  a  reservation  at  one  or  two  days  is  bad,(//)  but  a  mere  difference  of 
words  is  not  material,  and  therefore  a  reservation  of  eight  bushels  of  wheat, 
in  lieu  of  a  quarter  of  wheat  is  good,  because  it  is  all  one  in  quantity,  value 
and  nature. (//) 

(M)  1  Inst.  47,  a  ;  5  Co.  .'5,  56 ;  Lane,  3D  ;  Gilb.  on  Rents,  22. 

{x)  Attorney-General  v.  Covenlry  (Mayor),  1  P.  Wins.  306. 

(y)  1  Burr.  121. 

(j)  Doe  V.  Lloyd,  3  Esp.  78;  Roc  v.  York  (Archb.)  6  East,  84;  Sugd.  Pow.  413, 
6tli  ed. 

(fl)  VVriglit  V.  Smith,  5  Esp.  203,  See  also  Campbell  v.  Leach,  Arabl.  740;  Doe  v.  Bet 
tison,  12  East,  30.5 ;  Shannon  v.  Brad^trect,  1  Sch.  &  Lef.  52. 

(/;)  Cardigan  (Earl)  v.  Montague,  Sugd.  Pow.  App.  N.  14  (2). 

(c)  Cox  V.  Day,  13  East,  122;  O'Brien  v.  Gricrson,  2  Ball.  &  Beat.  323.  See  also 
Campbell  v.  Leach,  Doc  v.  Bcttison  and  Shannon  v.  Bradslreet,  sup. 

{il)  Doe  V.  Rogers,  5  B.  &,  Ad.  765  ;•  S.  C,  2  Nev.  &.  Man.  550. 

{p)  Morrice  v.  Aiitrobus,  Hard.  325  ;  Orby  v.  Mohun,  3  Chan.  Rep.  56  et  seq. :  S.  C,  2 
Vern.  531 ;  Prec.  C.'ian.  257 ;  2  Freem.  2i) ;"  Right  v.  Thomas,  3  Burr.  1441  ;  S.  C,  1  Bl. 
446 ;  Doc  v.  Creed,  4  M.  &  S.  371. 

{g)  Mouutjoy's  case,  5  Co.  4  b.  {h)  Id.  5  b. 

>Eng.  Com.  Law  Reps,  xxvii.  175. 


WHAT    ESTATES    MAY     BE     HAD     IN    A     RENT. 


141 


177.  Regularl}'-  the  rent  to  be  paid  should  be  specified  in  the  lease,  but 
if  there  be  words  in  the  reservation  by  which  the  rent  can  be  ascertained,  it 
will  be  sufficient ;(/)  but  when  the  reservation  is  vague  and  indefinite  the 
lease  will  be  void. (A") 

Where  the  rent  is  required  to  be  reserved  at  particular  days,  the  reserva- 
tion must  be  accordingly,  but  where  merely  the  best  yearly  rent  is  required, 
it  may  be  made  payable  quarterly  or  otherwise, (/)  but  the  rent  cannot  be 
reserved  either  after  or  before  the  day  appointed. (?n) 

Where  one  entire  gross  sum  is  reserved  on  the  demise  of  lands,  part  of 
which  are  not  within  the  power,  the  demise  is  void  ;(n)  as  where  opened 
and  unopened  mines  were  demised  by  one  deed,  containing  a  general  reser- 
vation, and  the  power  did  not  authorise  a  demise  of  unopened  mines,  it  was 
held  that  the  whole  was  void(o)  unless  where  the  rent  is  reserved  according 
to  the  quantity  or  prod  ace ,(o)  or  there  is  a  distinct  reservation  of  a  particular 
sum  in  respect  of  the  lands  comprised  in  the  power. (/)) 

*A  reservation  to  the  tenant  for  life  exercising  the  power, '<  his  ^^.q^, 
heirs  and  assigns,"  is  a  good  reservation,  for  those  words  mean  of  L  J 
necessity  the  person  to  whom  the  inheritance  shall  go,(y)  see  further,  ante, 
§§  160—165. 


HI.  S^ftat  Jdlutattu  mmj  i)e  fiatr  in  a  Htnt 


§  178. 

Fee-Simple. 

§  18.'5. 

Rent  in  Remainder. 

179. 

Fee-Tail. 

186. 

Seisin  of  Rent. 

180. 

For  Life. 

Seisin  in  Law. 

Occupancy. 

187. 

Under  tlie  Statute  of  Uses 

181. 

Rent  executed  to  Uses. 

Seisin  of  a  Rcnt-Cliarge. 

182. 

Curtesy  in  a  Rent. 

188. 

No  Disseisin  of  a  Rent. 

183. 

Dower  in  a  Rent. 

189. 

Transfer  of  a  Rent. 

184. 

Rent  to  commence  in  Future. 

178.  Rent  is  susceptible  of  the  same  limitations  as  land,  and  may  there- 
fore be  granted  in  fee,  in  tail  or  for  life.(r)  When  a  rent  was  granted  in 
fee,  with  a  clause  of  distress,  and  a  fine  was  levied  to  the  intent,  that  if  the 
rent  were  behind,  the  grantee  might  enter,  it  was  held  that  this  created  a 
contingent  and  future  interest,  which  was  a  matter  of  inheritance,  and  being 
a  security  for  the  payment  of  the  rent,  might  well  be  transferred  therewith, 
for  by  the  grant  of  the  rent  the  penalty  and  the  advantage  passed. (s)(l) 

(i)  Lewison  v.  Pigfot,  cited  3  Chan.  Rep.  6 ;  and  see  Audley  v.  Audley,  2  Chan.  Rep.  82 ; 
Shannon  v.  Bradstrcet,  sup.  {k)  Orby  v.  Mohun,  sup. 

(I)  Dean  and  Chapter  of  Worcester's  case,  6  Co.  37  b  ;  Campbell  v.  Leach,  Ambl.  740. 

(m)  Ludlow  V.  Beckwith,  All.  90 ;  Doe  v.  Gifford,  5  B.  &  A.  371  ;  Sugd.  Fow.  427,  6th 
ed.  (n)  Doe  v.  Lloyd,  3  Esp.  78.  (o)  Campbell  v.  Leach,  sup. 

(p)  Knight's  case, 5  Co.  54  b.  See  also  How  v.  Whitfield,  1  Vent.  339,  S.  C,  2  Show. 
67;  Cardigan  (Earl)  v.  Montague,  ^up. ;  Orby  v.  Mohun,  sup.;  Doc  v.  Meylcr,  2  M.  & 
S.  276 ;  Doc  v.  Rendlc,  3  M.  .V  S.  99. 

iq)  Whitloek's  case,  8  Co.  69  b  ;  Hotlcy  v.  Scot,  Lofft,  316. 

(r)  Butt's  case,  7  Co.  23,  (s)  Havergill  v.  Hare,  Cro.  Jac.  510. 


(1)  Farley  v.  Craig,  6  Halst.  262. 
Pet.  596. 
July,  1846.— 10 


People  V.  Haskins,  7  Wend.  463.      Scott  v.  Lunt,  7 


142  crabb's    law    of    real   property. 

179.  There  may  be  a  limitation  in  tail  of  a  rent,  as  of  land,  but  with  this 
difference,  that  the  tenant  in  tail  of  lands,  with  the  immediate  reversion  ia 
fee  in  the  donor,  might  by  a  common  recovery  have  barred  the  entail  and 
the  reversion  (as  he  may  now  under  the  3  &  4  W.  c.  74,  see  Dig.  p.  ii.  tit. 
Fines  and  Recoveries,)  but  the  grantee  in  tail  of  a  rent  de  novo,  without  a 
r*issl  subsequent  limitation  *of  it  in  fee,  acquired  by  a  common  recovery  a 
L         J  base  fee  only.(/) 

180.  So  a  rent  may  be  granted  to  one  for  his  own  life  or  the  life  of  an- 
other ;(«<)  but  if  granted  to  A.  for  the  life  of  another,  remainder  to  B., 
although  A.  dies,  yet  the  remainder  is  good.(t<)  But  a  rent  for  Hfe  granted 
out  of  a  term  for  years  is  but  a  chattel,  and  shall  be  satisfied  out  of  the  term 
until  one  or  other  estate  determines, (x)  but  when  a  rent  is  granted  out  of 
land  in  fee,  and  out  of  a  term  for  years  for  the  life  of  the  grantee,  this,  as  an 
estate  of  freehold,  cannot  issue  out  of  the  term,  but  out  of  the  land  which  the 
grantor  has  in  fee-si mple.(7/) 

By  the  common  law  there  could  be  no  general  occupant  of  a  rent,  there- 
fore if  a  rent  were  granted  to  A.,  his  executors  and  administrators  during 
the  life  of  B.,  and  A.  died  intestate  before  cestui  que  vie,  it  was  held,  that 
the  rent  must  determine,  for  his  administrator  could  not  claim  it  either  as 
assign  or  occupant  ;(z)  sed  secus  where  there  is  a  special  occupant  ;(o)  and 
it  has  been  thought  that  executors  and  administrators,  if  named  in  the  grant, 
might  have  taken  an  estate  pur  autre  vie,  though  a  freehold,  even  before 
the  29  C.  2,  c.  3,  and  14  G.  2,  c.  20,(1)  see  Dy.  338  ;  also  further,  Dig.  p. 
i.  tit.  Estates,  also  post,  tit.  Estates. 

181.  Rents  may  be  limited  to  uses  under  the  Statute  of  Uses,  being  therein 
expressly  mentioned,  and  that  either  as  regards  rents  in  esse,  which  may  be 
executed  in  the  same  manner  as  uses  of  corporeal  hereditaments,  or  rents  de 
novo  which  are  limited  in  use  out  of  the  seisin  of  the  land,  therefore  when 
lands  are  conveyed  to  A.  and  his  heirs,  to  the  intent  that  B.  or  B.  and  his 
r«i8Q"l  ^^'^^  "^^y  receive  a  rent,  the  rent  *is  executed  in  B.;(2)  but  as  in 
L  -'  the  case  of  lands,  the  Statute  transfers  the  legal  estate  in  the  rent  to 
the  first  cestui  que  use,  when  therefore  lands  are  conveyed  to  A.  and  his 
heirs  to  the  use  of  B.,  with  a  declaration  that  B.  and  his  heirs  shall  stand 
seised  of  the  rent  to  the  use  of  C.  for  life,  with  remainder  over,  it  was  held 
that  the  use  was  executed  first  in  B.  and  then  in  C,  and  that  the  remainder- 
man took  a  trust  estate  only. (6) 

182.  There  may  be  curtesy  in  a  rent,  and  a  man  may  be  tenant  by  the 
curtesy  of  a  rent  although  his  wife  die  before  the  rent  becomes  due  and  she 

(0  Chaplin  V.  Chaplin,  3  P.  Wins.  229  ;  Wrcks  v.  Feach,  Lutw.  1224. 

{II)  Salter  V.  Butler,  Cro.  El.  901  ;  S.  C.  Yolv.  9. 

(x)  St.  Auby's  case,  Cro.  El.  183,  (?/)  Butt's  case,  7  Co.  23. 

(z)  Salter  v.  Butler,  sup.  (a)  Plowd.  28,  556;  Palm.  32. 

(i)  Chaplin  v.  Chaplin,  sup. 

(1)  All  tenements  per  auter  vie  pass  to  the  executor,  in  Pennsylvania,  under  the  act  of 
1834  s.  9,  unless  a  special  occupant  be  named. 

(2)  So  of  a  rent  reserved  under  a  power  to  convey  in  fee  on  ground  rent.     Ex  parte 
Elliott,  5  Whart.  524. 


WHAT    ESTATES     MAY     BE     HAD     IN     A    RENT. 


143 


has  but  a  seisin  in  law,  because  as  Lord  Coke  says,  the  husband  could  by 
no  industry  attain  to  any  other  seisin,  and  impotenlia  excusat  legem  ;[c){l^ 
so,  where  a  rent-charge  was  granted  to  a  woman  and  her  heirs,  payable  at 
two  feasts  in  the  year,  the  first  payment  to  be  made  at  such  of  the  said  feasts 
as  should  happen  after  the  death  of  J,  S.  ;  the  woman  married,  had  issue 
and  died  ;  it  seems  to  have  been  the  incHnation  of  the  court,  that  the  husband 
should  be  tenant  by  the  curtesy  of  the  rent,  for  ahhough  the  rent  was  to 
commence  in  futuro  yet  it  was  granted  over  presently,  which  proved  to  be 
in  esse,  so  that  the  wife  might  be  said  habere  hseredUatem,  and  the  seisin 
was  not  material  in  the  case  of  a  rent.((i)  So  it  is  said  that  if  a  woman 
make  a  gift  in  tail,  reserving  a  rent  to  her  and  her  heirs,  then  takes  husband 
and  has  issue,  and  the  donee  dies  without  issue,  the  husband  shall  not  be 
tenant  by  the  curtesy  of  the  rent,  for  that  it  was  determined  by  the  act  of 
God,  and  no  estate  thereof  remained  ;  but  if  a  man  seised  in  fee  of  a  rent, 
makes  a  gift  in  tail  general  to  a  woman,  who  takes  husband  and  has  issue, 
the  husband  shall  be  tenant  by  the  curtesy  of  the  rent  ;  because  the  rent 
remains  ;(e)  so,  if  he  be  a  tenant  de  novo  granted  in  tail,  and  the  wife  dies 
without  issue,  the  husband  shall  be  tenant  by  the  curtesy. (/) 


*183.  A  Avoman  shall  have  dower  of  a  rent,  whether  it  be  rent- 


r*i 


service,  rent-charge   or  rent-seek,  but  it  must  be  an  estate  in  fee-  L  -^ 

simple  ;(g')  for  if  it  be  an  annuity  which  charges  only  the  person,  and  does 
not  issue  out  of  any  lands  or  tenements,  she  shall  not  be  endowed  ;(5'')  so, 
if  a  man  under  the  old  law  of  dower  made  a  lease  for  life  of  certain  lands 
reserving  a  rent  to  him  and  his  heirs,  and  then  look  a  wife  she  should  not 
be  endowed  of  the  reversion  because  there  was  no  seisin  either  in  deed  or 
in  law,  nor  of  the  rent  because  the  husband  had  but  a  particular  estate 
therein  ;  sed  secus  if  the  husband  had  made  a  lease  for  years. (A) 

So,  for  the  same  reason  if  the  freehold  of  the  rent  were  suspended  during 
the  coverture  a  woman  should  not  be  endowed. (/) 

So,  if  a  rent  de  novo  were  granted  in  tail  without  any  remainder  over,  and 
tenant  in  tail  took  wife  and  died  without  issue,  held  that  th^wife  should 
not  be  endowed  because  the  thing  out  of  which  the  dower  was  to  arise  was 
not  in  being  ;  but  it  was  otherwise  where  tenant  in  tail  married  and  died 
without  issue,  whereby  the  estate  tail  was  determined :  for  the  wife  in  that 
case  should  be  endowed  notwithstanding,  because  the  land  was  in  beino', 
though  the  estate  tail  was  determined,  and  the  dower  was  in  some  respects 
a  continuance  of  the  estate  tail,(A-)  and  see  further  as  to  dower,  post,  tit. 
Dower. 

So,  in  the  same  case,  if  a  rent  in  esse  were  granted  to  A.  in  tail,  remainder 
to  B.  in  fee,  and  A.  married  and  died  without  issue,  it  was  held  that  the 
wife  should  be  endowed  ;  and  so,  if  a  rent  de  novo  was  granted  to  A.  in  tail, 
remainder  to  B.  in  fee,  and  A.  married  and  died  without  issue,  yet  his  wife 
should  be  endowed. (/f) 


(c)  1  Inst.  29,  a. 

{/)  1  Inst.  30,  a. 

is)  1  Inst.  32. 

(i)  Lillington's  case,  7  Co.  38, 


(d)  Dcthick  v.  Bradburne,  2  Sid.  110. 117. 
(/)  Harg.  Co.  Litt.  30,  a.  n.  (2.) 
(A)  Fnlg-eani's  case,  Noy,  280. 
(t)  Chaplin  v.  Chaplin,  sup. 


(1)  Jackson  v.  Sellick,  8  Johns.  265. 


144  crabb's  law   of  real  property. 

So,  likewise  in  the  same  case  it  was  held  that  a  wife  was  not  dowable 
out  of  an  equitable  estate  ;(/c)  but  it  is  otherwise  now  under  the  new  law, 
see  post,  tit.  Dower. 

*184.  A  new  rent  may  be  made  to  commence  in  fiifuro,  for 
L  J  being  an  incorporeal  hereditament,  there  is  no  suspension  of  any 
freehold  as  in  the  case  of  land,(/)  so  that  the  period  of  commencement  be  not 
too  distant  ;(m)  it  is  otherwise  however  with  rent  in  esse  or  a  rent  already 
created,  for  that  cannot  be  granted  to  commence  after  the  death  of  another, 
because  to  such  a  rent  there  may  be  a  precedent  title. («) 

185.  A  rent-charge  may  be  granted  in  remainder  after  a  limitation  of  it 
to  a  person  for  hfe,  as  where  granted  to  A.  for  the  life  of  B.  remainder  over, 
it  was  held,  that  though  A.  should  die  in  the  life  of  B.,  so  that  the  rent 
determined  as  to  the  perception  of  it,  yet,  inasmuch  as  the  terre-tenant 
during  that  time  held  the  land  discharged  of  the  rent,  that  was  sufficient  to 
support  the  remainder,(o)  and  although  it  has  been  objected  that  there  could 
be  no  remainder  of  that  whereof  there  was  no  reversion,  yet  the  intent  of 
the  party  gives  the  rent  de  novo,  first  a  being  for  the  whole,  and  then  the 
lesser  estates  are  carved  out  of  it.(jQ) 

186.  A  rent  being  an  incorporeal  thing,  can  be  acquired  only  by  actual 
receipt,  but  payment  of  any  money  in  the  name  of  seisin  of  rent,  will  give 
seisin, ((J')  and  therefore  where  a  man  grants  over  divers  and  several  rents, 
and  the  tenant  gives  a  penny  in  the  name  of  seisin  of  all  rents,  it  is  a  good 
seisin  'Jr)  and  payment  of  parcel  of  rent  beforehand  is  an  actual  seisin  of 
the  rent  to  give  a  real  action  ;(s)  and  so  it  is  if  a  man  give  an  ox  or  a  horse, 
or  other  valuable  thing  in  the  name  of  rent.(s) 

-.  187.  In  some  cases  however  there  may  be  a  seisin  in  law  *of 
L  ^  rent,  as  for  instance  to  entitle  a  man  to  curtesy.  (See  ante,  §  182.) 
So,  there  is  a  distinction  between  a  rent  at  common  law,  and  where  it 
is  limited  under  the  Statute  of  Uses,  as  where  land  is  conve3'^ed  to  A.  and 
his  heirs  to  the  use  of  B.  that  he  may  receive  thereout  an  annual  rent,  there 
the  use  of  the  rent  is  immediately  executed  by  the  statute  in  B.(/) 

As  to  a  rent-charge  the  grant  and  delivery  of  the  deed  is  no  seisin  of  the 
rent,  for  the  seisin  in  law,  which  the  grantee  has  by  the  grant,  is  not  suffi- 
cient to  maintain  an  action. (^<) 

188.  Where  a  person  has  been  once  seised  of  a  rent,  he  cannot  afterwards 
be  disseised  of  it  except  at  his  own  election  \{x^  for  if  A.  is  seised  of  a  rent- 
charge,  and  the  tenant  of  the  land  pays  the  rent  to  another,  this  will  not 

(J<)  Chaplin  v.  Chaplin,  sup.  {D  Plowd.  1.56 ;  Palm.  99,  30  ;  2  Vent.  204. 

(fn)  Gill),  on  Rents,  60;  and  see  Turner  v.  Turner,  1  B.  C'.  C.  316. 

(n)  Plowd.  156.  (0)  Salter  v.  Butler,  Yelv.  9. 

(p)  Weeks  V.  Peach,  2  Palk.  277.  (7)  1  Inst.  1.59,  b. ;  160,-  a. 

(r)  22  Ass.  66;  Bevill's  ease,  4  Co.  8,  9,  (s)   1  Inst.  315,  a. 

[t)  Chaplin  V.  Chaplin,  3  P.  Wnis.  229.  {v)  1  Inst.  160,  a. 

(*)  Litt.  ss.  237.  240. 


PAYMENT     OF     RENT. 


145 


divest  A.  of  his  right ;  and  the  pa3rment  of  the  tenant  being  in  his  own 
wrong,  the  rent  still  remains  in  arrear  to  A.(i/)(1) 

189.  A  rent  in  esse  may  be  granted  or  assigned  even  before  the  grantor 
has  seisin  of  it,(z)  but_not  during  its  suspension  ;(cf)  and  a  rent-charge  might 
be  conveyed  by  fine  ana  recovery, (i)  now  by  the  substituted  assurance 
under  the  3  &  4  W.  4,  c.  74,  see  Dig.  P.  i.  ii.  tit.  Fines  and  Recoveries. 
So,  it  might  before  the  4  &  5  Vict.  c.  21,  have  been  conveyed  by  lease  and 
release,  and  now  by  release  only  ;  so  also  by  bargain  and  sale,  and  covenant 
to  stand  seized  ;(c)  as  well  as  by  grant  at  common  law. 


*iv.  jjngmeut  of  IXtnu 

1.  Days  of  Payment  of  Rent. 


[n93] 


§  191.  By  Appointment  of  the  Parties. 
Or  of  the  Law. 
192.  General  Reservation. 


§  193.  Days  of  payment,  how  limited. 
Particular  days  of  payment. 
Payment  in  advance. 
Old  and  New  Lady  Day,  &,c 


194.  Part  of  the  day. 
The  Day  itself. 


195.  On  the  Land. 


2.  When  Rent  is  due. 

I     194.  How  Parties  are  affected  by  the  law. 

3.   Where  Rent  is  payable. 

I      195.  In  the  Exchequer. 

4.  How  Rent  is  payable. 


196.  Payment  before  it  is  due.  |      19G.  Arrears  of  Rent  a  Specialty  Debt. 

196.  Set-off  against  Rent. 

5.  To  ivhom  Rent  is  payable. 


197.  Real  or  Personal  Representatives. 

198.  As  between  Landlord  and  Tenant. 
In  case  of  Bankruptcy. 

199.  Execution  against  Tenant.       , 


200.  Landlord's  Claim  under  what  Exe- 

cutions. 

201.  As  between   Morgagfor   and    Mort- 


gagee. 


6.  Liability  to  pay  Rent. 


202.  Liability  under  Covenant. 
20.3.  Relief  in  Equity. 
204.  In  case  of  Eviction. 

From  Part  of  the  Land. 

Eviction  in  case  of  Tenancy  from 
Year  to  Year. 


205.  Liability  of  Tenant  in  case  of  Assign- 

ment. 

206.  Where  there  is  no  beneficial  Enjoy. 

ment. 

207.  Liability    of   Personal    Represcnta- 

lives. 


(jy)  Litt.  sect.  558,  559  ;  sec  also  10  Co.  97  ;  Hawk.  P.  C.  c.  64,  s.  45  ;  3  Cr.  Dig.  295. 

{z)  Perk.  sect.  91  ;  Shep.  Touchst.  238.  ('/)  Shop.  Touchst.  sup. 

(6)  Pig.  97.  {(1)  Lade  v.  Baker,  2  Ventr.  260. 


(I)  And  lapse  of  time,  daring  which,  it  is  not  paid,  produces  no  effect  upon  it,  where 
there  is  a  deed  to  show  its  origin.     St.  Mary's  Church  v.  Miles,  1  Whart.  229. 


146  crabb's  law   of   real   property. 

§  190.  Under  this  head  may  be  considered — 1.  Days  of  payment  of  rent; 
2.  When  rent  is  due;  3.  Where  rent  is  payable;  4.  How  rent  is  payable; 
5.  To  whom  rent  is  payable  ;  6.  Liability  of  tenant  to  pay  rent. 

1.  Days  of  Payment  of  I^nf^ 

191.  The  days  of  payment  are  either  by  the  particular  appointment  of 
r*1Q4n  ^^^^  parties,  or  in  default  thereof  bj^  the  *appointment  of  law  so  as 
•-  -^  to  answer  the  intention  of  the  parties  ;(rfj  and,  therefore,  if  A.  makes 
a  lease  to  B.  the  6th  of  August,  rendering  yearly  the  rent  of  forty  shillings 
at  the  two  feasts  of  the  year,  that  is,  at  Lady-day  and  Michaelmas,  by  equal 
portions ;  though  in  this  case  by  the  appointment  of  the  parties  Lady-day 
be  the  first  term  mentioned,  yet  the  first  paj'ment  shall  be  made  at  Michael- 
mas ensuing  the  date  of  the  lease;  for  without  such  transposition,  the  inten- 
tion of  the  parties  would  never  be  fulfilled  ;  because  the  rent  being  reserved 
annually,  the  lessor  would  lose  the  profits  of  one-half  year,  as  the  lessee 
would  enjoy  the  land  from  the  date  of  the  lease  to  the  first  Michaelmas 
without  paying  rent,  and  so  likewise  from  the  last  Lady-day  of  the  term  to 
the  expiration  of  it;  because,  although  the  lease  ended  in  August,  yet  the 
payment  was  not  to  be  made  till  Pvlichaelmas,  before  which  the  lease 
expired. (e)  See  also  5  Co.  112;  3  Bulst.  328;  2  Roll.  Rep.  213;  T.  Jo. 
109,  as  to  how  the  law  marshals  payments. 

So,  if  a  man  make  a  lease  the  first  day  of  Maj%  reserving  rent  quarterly, 
this  shall  be  intended  quarterly  from  the  making  of  the  lease ;  for  if  the 
beginning  of  the  quarter  be  construed  to  be  an}'  other  daj''  than  the  date  of 
the  lease,  the  lessor  will  lose  a  portion  of  the  profits. (/) 

192.  A  rent  reserved  generally  is  payable  at  the  end  of  the  year  ;(g')  and 
although  there  was  a  parol  agreement  to  pay  quarterly,  and  the  rent  was 
accordingly  paid  quarterly,  yet,  as  there  was  no  mention  in  the  written 
agreement  of  the  time  when  the  rent  was  to  be  paid,  it  was  held,  that  the 
rent  was  still  payable  yearly,  and  not  quarterly  ;(/i)  and  if  the  rent  is  made 
payable  yearly  during  the  time  that  the  lessee  shall  enjoy  the  land,  the 
lessor  cannot  demand  this  rent  half-j'earlj',  but  must  wait  to  the  end  of  the 
r*lQ^"l  y^^^"(0  *^°'  ^^  ^  "^^'^  grants  a  rent  of  10/.  to  another,  payable  at 
L  -^  the  two  usual  feasts  of  the  year,  this  shall  be  intended  by  equal  por- 
tions, though  it  be  not  so  mentioned  in  the  deed,  because  where  there  are 
two  several  days  appointed  for  the  payment,  it  is  the  most  equal  construc- 
tion that  a  moiety  of  the  rent  shall  be  paid  at  each  day  ;(A')  and  the  two  usual 
feasts  shall  be  deemed  to  be  Ladj^-day  and  Michaelmas,  because  they  are 
the  days  usually  appointed  in  contracts  of  this  nature. (/) 

193.  When  special  days  of  payment  are  limited  by  the  reddendum,  the 
rent  must  be  computed  according  to  the  reddendum,  and  not  according  to 
the  habendum  ;  and  the  computation  of  the  rent  according  to  the  habendum 
is  only  when  the  reddendum  is  general,  that  is,  yielding  and  paying  quar- 
terly so  much  rent.(m) 

{d)  Plovvd.  171 ;  1  Inst.  217 ;  Hob.  172 ;  Gilb.  on  Rents,  48. 

(e)  Hill  V.  Grange,  Plowd.  171.  (  f)  2  Roll.  Abr.  449,  450.  (ir)  Latch,  264. 

(/()  Turner  v.  Allday,  Tyr.  &  Gr.  819.  (i)  Hctl.  53  ;  LiU.  Rep.  61. 

(/r)  Noy,  18 ;  2  Roll.  Abi".  450.  (Z)  2  And.  122 ;  2  Roll.  Abr.  450. 

(m)  Tomkyns  v.  Pinsent,  2  Ld.  Raym.  819  ;  S.  C,  1  Salk.  141 ;  7  Mod.  96. 


PAYMENT    OF    RENT.  147 

Where  rent  is  reserved  quarterly  or  half-quarterly,  if  required,  and  the 
landlord  received  the  rent  quarterly  for  the  first  twelve  months,  it  was  held, 
that  he  could  not  without  notice  distrain  for  a  half-quarter's  rent  ;(n)  and 
if  rent  is  intended  to  be  made  payable  in  advance,  it  must  be  so  clearly 
specified  ;  for  where  a  house  was  let  at  a  yearly  rent,  payment  to  conunence 
at  Michaelmas,  and  to  be  paid  three  months  in  advance,  such  advance  to 
be  paid  on  taking  possession,  held  that  this  advance  was  confined  to  the  first 
quarter  only ;  and  if  the  intention  had  been  otherwise,  it  ought  to  have 
been  said  <«  alwaj^s  paid  in  advance"  ;(o)  but  under  a  reddendum  of  a 
yearly  rent,  payable  by  four  equal  quarterly  payments,  commencing  from 
the  25th  day  of  March  then  instant ;  the  first  quarter's  rent  is  payable  on  the 
said  25th  day  of  March  ;  and  consequently  the  rent  is  a  beforehand  rent ;(/)) 
and  yet  under  an  agreement  for  the  quarterly  *'payment  of  rent,  ,-:•., q(.t 
the  first  payment  becomes  due  at  the  end  of  the  first  quarter,  and  L  J 
the  custom  of  the  country  to  pay  rent  in  advance  cannot  be  imported 
into  it. (7) 

Where  on  a  parol  demise  rent  was  to  be  payable  from  the  Lady.day 
following,  evidence  of  the  custom  of  the  country  was  held  admissible,  to 
shew  that  the  parties  meant  "Old  Lady-day  ;"(r)  so,  where  the  defendant 
in  replevin  avowed  that  the  rent  was  payable  at  Martinmas,  to  wit,  Nov. 
23rd,  this  was  held  to  mean  Neiv  Marlinmas,  but  evidence  Vv'as  admitted 
to  shew  that  the  rent  was  payable  at  Old  Martinmas. (s) 

2.   When  Rent  is  due. 

194.  The  time  when  rent  is  due  by  law  respects  either  the  part  of  the 
day,  or  the  day  itself. 

As  to  the  part  of  the  day,  it  seems  to  be  settled  that  rent  is  not  due  until 
midnight  of  the  day  upon  which  it  is  reserved ;(^)  although  sunset  is  the 
time  appointed  by  law  to  make  a  proper  demand  of  it,  in  order  to  take  advan- 
tage of  a  condition  of  re-entry,  and  to  tender  rent  in  order  to  save  a  for- 
feiture.(?<)  • 

As  to  the  day  itself,  it  has  been  held,  that  where  the  reservation  is  in  the 
alternative,  to  pay  at  anj^  particular  feast,  or  so  many  days  after,  although  it 
is  in  the  election  of  the  lessee  to  pay  at  the  feast,  yet  the  rent  was  not  legally 
due  until  the  last  of  the  days  after ;(w)  and  where  the  reservation  was  until 
a  certain  feast,  the  feast-day  was  held  to  be  inclusive  ;(.r)  and  though  there 
be  election  to  pay  on  the  *said  feast  or  twentj^-one  days  after,  yet  ^-^i, q~-, 
this  was  held  not  to  be  material,  for  when  the  last  feast  comes,  it  is  L  -^ 
absolutely  due  on  that  day, (a;) 

(n)  Mallam  v.  Arden,  10  Bin^.  299  p  S.  C,  3  Mo.  &  Sc.  763. 

(0)  Holland  v.  Falser,  2  Stark.  161.'' 

(p)  Hopkins  V.  Hclmorc,  8  Ad.  &l  E.  463  -s  S.  C,  3  Ncv.  &  P.  4r,3  ;  1  W.  W.  &,  U.  386 ; 
2  Jur.  856.  (v)  Doe  v.  Wellcr,  1  Jur.  62i2. 

(r)  Doe  V.  Benson,  4  B.  &  A.  .588,'  recognised  in  Den  v.  Hopkinson,  3  D.  ifc  R.  507.« 

(s)  Sinitli  V.  Walton,  8  King.  23.> ;'  S.  C.  1  M.  &  Sc.  380. 

(0  Chin's  case,  10  Co.  127  ■  Duppa  v.  Mayo,  1  Sannd.  287  ;  S.  C,  2  S:ilk.  578.     See  also 

Soutliern  v.  Bellasis,  cited  Rockingham  v.  Pen  rice,  1  P.  Wuis.  177  ;  Strafford  (Earl)  v. 
Lady  VVentworth,  Id.  180.  (tt)  Duppa  v.  Mayos  sup. 

{v)  Chin's  case,  snp. 

Ix)  Bigg-on  V.  Bridge,  3  Kcb.  534,  overruling  Umblc  v.  Fisher,  Cro.  El.  702 ;  S.  C,  Yelv. 
74;  and  recognising  Anon.,  3  Leon.  211. 

»  25  Eng.  Com.  Law  Reos.  140.     '3  Id.  294.      •■35  Id.  439.     ''G  Id.  527. 
'16  Id.  177.     '21  Id.  2S6. 


148  crabb's   law  of   real   property. 

The  question  as  to  the  time  wlien  rent  is  due,  affects  not  only  the  party- 
liable  to  pay,  but  also  the  party  entitled  to  receive.  Rent  is  not  due  before 
the  day  of  payment  incurred,(l)  and  if  paid  by  the  tenant  before  it  is  due,  it 
is  a  voluntary  payment  ;(s)  and  if  the  lessor  dies  on  the  day  when  it  ought 
to  be  paid,  but  before  midnight,  tlie  rent  which  is  incident  to  the  reversion 
will  go  with  the  land  to  the  heir  or  reversioner  ;  but  this  is  to  be  understood 
of  the  case  of  a  lease  made  by  a  person  seised  in  fee,  or  made  under  a  power  ; 
for  it  is  otherwise  in  the  case  of  a  lease  made  by  a  tenant  for  life. 

Where  the  rent  is  once  due,  or  in  arrear,  it  goes  to  the  executor  as  a 
chattel,  ahhough  before  it  is  due  he  cannot  recover  it :(«)  and  where  a  tes- 
tator died  in  the  afternoon  of  Michaelmas-day,  after  having  received  rent 
from  one  of  his  tenants  on  the  morning  of  that  day,  the  executor  was  com- 
pelled to  account  for  it  to  the  party  entitled. (6)  As  to  what  goes  to  the  heir, 
and  what  to  the  executor,  see  further,  ante,  §  12. 

3.  ff'here  Jient  is  pai/able. 

195.  "Where  rent  is  reserved  payable  yearly,  it  is  to  be  paid  on  the  land, 
for  the  land  is  the  debtor  ; (f)(2)  and  it  makes  no  ditierence  that  a  man  has 
bound  himself  to  perform  the  covenants  of  his  lease,  for  the  rent  may  be 
tendered  on  the  land  without  seeking  the  obligee. (r)  The  lessee  of  the 
queen  must  pay  his  rent,  without  demand,  at  the  Exchequer,  wherever  it 

may  be  ;  but  if  the  queen  grant  the  land  in  *reversion,  the  patentee 
L  -^  must  demand  the  rent  on  the  land  before  he  can  enter  as  for  a  for- 
feiture for  non-payment. (c) 

4.  How  lie nt  is  payable. 

196.  If  the  tenant  pay  his  rent  before  the  day,  it  is  voluntary,  and  no  satis- 
faction at  law  ;  but  if  it  be  paid  in  the  name  of  seisin  of  rent,  it  will  enure 
to  give  seisin  ;(/)  but  such  payment  in  equity  will  it  seems  discharge  the 
lessee  •,{g)  but  the  remainderman  may  in  that  case  recover  it  from  the  per- 
sonal representatives. (^)  If  rent  is  payable  at  the  feast  of  Easter,  and  the 
tenant  pays  the  rent  in  the  morning,  and  the  lessor  dies  at  two  hours  before 
noon  of  the  same  day,  this  payment  although  voluntary  is  a  good  satisfac- 
tion against  the  heir,  but  not  against  the  queen  ;(/*)  and  the  same  has  been 
decreed  in  equity. (/) 

Rent  in  arrear,  whether  by  deed  or  parol,  is  held  to  be  of  equal  degree 
with  a  specialty  debt,  and  therefore  in  the  distribution  of  a  deceased  tenant's 

(z)  See  post,  §  197.  («)  Pilkington  v.  Dallon,  Cro.  El.  575. 

(6)  Lord  Rockingham  v.  Pcnricc,  sup.  (c)  1  Inst.  201,  b. 

(e)  Borou2:li  v.  Taylor,  Cro.  El.  462. 

(/)  Chin's  case,  sup.;  Cromwell  (Lord)  v.  Andrews,  Cro.  El.  150. 

{g)  Rockina-ham  (Lord)  v.  Oxcnden,  cited  in  ex  parte  Smyth,  1  Swanst.  346,  n. 

\h)  44  E.  3^3  b,  cited  in  Clun's  ease,  sup.;  and  sec  Yelv.  167  ;  Brownl.  106;  Hard. 24, 

(i)  Lord  Rockingham  v.  Penrice,  sup. 

(1)  Wood  V.  Partridge,  11  Mass.  493.  Bank  v.  Wise,  3  Watts,  401.  And  an  evictioa 
on  the  day  on  which  payable,  extinguishes  it.     Smith  v.  Sheplserd,  15  Pick.  147. 

(2)  Whether  in  money  or  kind;  and  a  plea  of  readiness  and  tender  there  sufficient. 
Walter  v.  Dewey,  16  Johns.  222. 


PAYMENTOFRENT.  149 

estate,  is  to  be  paid  with  debts  of  that  degree. (Ar)  Rent,  like  any  other  spe- 
cies of  debt,  may  be  paid  by  a  remittance  by  the  post,  and  if  so  directed  by 
the  landlord  and  it  be  lost,  the  latter  must  bear  the  loss  ;(/)  and  so  a  landlord 
or  any  other  creditor  may  insist  upon  payment  being  made  to  himself;  but 
havino-  once  authorized  payment  to  an  agent,  he  cannot  revoke  the  author- 
ity, if  the  debtor  has  given  such  a  pledge  to  pay  as  would  bind  him  in  a 
court  of  law  ;(m)  and  in  the  3  and  4  W.  4,  c.  42,  debt  for  rent  upon  an 
indenture  of  demise  is  *put  on  the  same  footing  as  other  specialties,  p*iQQ-i 
see  Dig.  iii,  tit.  Limitations  of  Actions.  ^ 

If  a  landlord  take  a  security,  as  a  bill  of  exchange  and  the  like,  this  will 
not  amount  to  a  payment,  nor  bar  him  of  his  remedies.(/?)(l) 

As  a  rule  no  payments  made  or  damages  sustained  by  a  tenant  can  be  set 
off  against  a  claim  for  rent,  except  a  payment  for  ground-rent  ;(o)  or  for  the 
land-tax  under  the  38  G.  3,  c.  5,  s.  17,  which  requires  such  deductions  to 
be  allowed  ;{p)  or  the  property-tax  ;{q)  or  other  rates  regularly  assessed  on 
the  landlord  ;(r)  or  where  a  tenant  is  compelled  to  make  any  payment  which 
the  landlord  is  bound  to  make,  in  order  to  save  himself  from  being  ousted  ;(*) 
or  where  the  tenant  is  compelled  to  make  repairs,  which  the  landlord  is 
bound  to  make ;(/)  or  where  there  is  a  special  agreement,  that  the  tenant 
may  deduct  from  the  rent  moneys  due  from  the  landlord.(a:)(2) 

5.  To  whom  Rent  is  payable,  or  who  entitled  to  receive  Rent. 

197.  As  to  the  persons  entitled  to  receive' rent,  questions  have  arisen  be- 

(k)  Willott  V.  Earlc,  1  Vern.  490  ;  Gage  v.  Acton,  1  Freem.  512  j  S.  C.,Com.  67  ;  Carth. 
511 ;  1  Salk.  325  ;  'I'hompson  v.  Tliompson,  9  Price,  471. 

(Z)  VVarwicke  v.  Noakes,  1  Pcake,  67. 

(m)  Hodfrson  v.  Anderson,  3  B.  &  C.  842  ;'  S.  C,  5  D.  &  R.  735. 

(n)  Harris  v.  .Sliipway,  Bull.  N.  P.  182;  Ewer  v.  Clifton,  Id.;  and  see  Swin  v.  Milul,  1 
Ken.  370  ;  Davis  v.  Gvde,  3  Ad.&  Ell.  623  ;  S.  C,  4  Ncv.  &,  Man.  462  ;  1  Harr.  &.  ^VoU. 
50  ;  Palfrey  v.  Baker,"3  Price,  573. 

(o)  Doe  V.  Hare,  2  Cr.  &  Mess.  145  ;  S.  C,  4  Tyrwh.  29. 

(p)  Saunderson  v.  Hanson,  3  C.  &  P.  314  ;"  Carter  v.  Carter,  5  Bing.  406 ;"  S.  C,  2  M. 
&,  P.  732.  (V)  Clennell  v.  Read,  7  Taunt.  50  ;^  S.  C,  2  Marsh.  371. 

(r)  Roper  v.  Bumford,  3  Taunt.  76. 

(s)  Smith  V.  Pcarce,  Woodf.  L.  Sl  T.291,  4th  ed.  by  Harr.  &,  Woll. 

{I)  Waters  v.  Woigall,  2  Inst.  575.  (x)  Willson  v,  Davenport,  5  C.  &  P.  53l.« 


'  (1)  Nor  a  promissory  note,  Snyder  v.  Kunklcman,  3  Penna.  Rep  487,  nor  a  judgfment 
on  the  covenant,  Chipman  v.  Martin,  13  Johns.  240;  Bancleon  v.  Smith,  2  Binn.  153  ;  or 
in  debt  and  security  given,  Shetsline  v.  Keemle,  1  Ash.  29  ;  Gordon  v.  Correy,  5  Binney, 
552. 

(2)  In  Pennsylvania,  where  the  right  of  set-off  is  much  more  extended  than  elsewhere, 
including  damages  for  breach  of  distinct  contracts,  the  right  is  confined  in  replevin  for 
distress,  to  damages  for  the  covenants  in  the  lease  which  constituted  part  of  the  considera- 
tion  of  the  rent.  Peterson  v.  Haight,  3  Whart.  150-3,  and  cases  cited  ;  Warner  v.  Clark, 
id.  193  ;  Gray  v.  Wilson,  4  Watts,  39.  But  in  Xew  York,  an  omission  to  repair  or  finish, 
cannot  be  set  off,  though  it  is  not  said  whether  the  lease  contained  a  covenant  to  that  effect, 
Allen  V.  Pell,  4  Wend.  505.  Etheridge  v.  Osborn,  12  Wend.  529,  was  a  covenant  by  the 
landlord  to  construct  a  race-way,  a  non-comi)liance  with  which  could  only  be  remollied  by 
a  separate  action.  There  certainly  seems  to  be  good  sense  in  the  view  taken  in  Fairman 
V.  Fluck,  5  W.  517,  tliat  covenants  for  rents  are  like  other  covenants,  and  where  the  plain- 
tiff has  not  complied  with  his  precedent  condition,  he  cannot  compel  payment  of  its  consi- 
deration. 

»10  Eng.  Com.  Law.  Rep.  247.    ti4  Id.  324.     '15  Id.  479.    ^2  Id.  50.    ^4  Id.  442. 


150  crabb's  law    of    real   property. 

tween  the  real  and  personal  repres,entatives  of  the  deceased  lessor,  between 
the  landlord  and  tenant,  or  the  mortgagor  and  mortgagee. 

As  between  the  real  and  personal  representatives  the  rent  will  on  the 
death  of  the  lessor  go  to  the  one  or  the  other,  either  according  as  the  rent  is 
reserved  or  as  the  death  happens  before  or  after  the  rent  becomes  due  ;{y) 
«onm  ^^^  ^^^^  must  be  understood  as  applying  only  to  the  case  of  a  lease 
L  -I  made  *by  a  lessor  seised  in  fee,  or  made  by  one  under  a  power ;  in 
the  case  of  a  lease  by  a  tenant  it  is  difierent.  In  two  particular  cases,  indeed, 
it  has  been  held  that  the  executor  of  a  tenant  for  life  was  entitled  to  the  rent 
although  the  lessor  died  before  it  was  due ;  as  where  A.  granted  a  rent- 
charge  toB.,  payable  at  Lady-day  and  Michaelmas,  and  B.  died  on  Michael- 
mas-day after  sunset,  it  was  held,  that  as  B.  lived  till  after  sunset,  which  was 
the  legal  time  for  demanding  the  rent,  though  he  died  before  twelve  at  night, 
it  should  go  to  the  executor  ;(z)  and  so,  where  A.,  tenant  for  life,  remainder 
to  his  wife  for  life,  made  a  lease  reserving  rent  at  Lady-day  and  Michaelmas, 
and  died  on  Michaelmas-day  about  twelve  o'clock  at  noon,  liis  administrator 
was  held  to  be  entitled  to  this  rent ;(«)  for  the  Court  look  a  difference  be- 
twixt a  rent  incident  to  a  reversion,  which  must  go  somewhere  (if  not  to  the 
executor,  then  to  the  heir),  and  where  the  rent  can  go  nowhere,  unless  to 
the  executor;  in  which  latter  case  if  the  lessor  lived  to  the  beginning  of  the 
day,  at  which  time  a  voluntary  payinent  might  be  made,  this  woi^d  be  sufii- 
cient  to  entitle  the  executor  or  administrator  to.the  rent,  rather  than  it  should 
be  lost  ;(6)  but  in  other  cases  where  the  lessor,  tenant  for  life,  died  before 
the  time  reserved  for  the  payment  of  the  rent  by  the  lessee,  the  rent  which 
accrued  from  the  last  quarter  to  the  time  of  the  death  was  lost,  or,  in  other 
words,  retained  by  the  lessee  himself  ;(e)  but  by  the  11  G.  2,  c.  9,  s.  15, 
amended  and  extended  by  4  &  5  W.  4,  c.  22,  this  portion  of  the  rent  is 
given  to  the  executor  or  administrator.  See  post,  §  210  ;  also  Dig.  P.  ii.  tit. 
Apportionment. 

198.  A  payinent  of  rent  by  mistake  or  misrepresentation  to  a  person  not 
entitled  to  it,  does  not  preclude  the  tenant  from  shewing,  that  the  person,  to 
-.  whom  it  was  paid,  was  not  ^entitled  ;((/)  and  the  party  paying  under 
L  -^  such  a  misapprehension  may  recover  the  amount  so  wrongfully 
paid  :(e)(l)  and  where  a  landlord  received  through  his  agent  his  rent  regularly 
from  a  tenant,  without  deducting  the  sewers'  rate,  which  it  was  afterwards 

(y)  See  ante,  §  105. 

(z)  Bellasis  v.  Cole  (sometimes  cited  as  Southern  v.  Bellasis),  cited  in  Rockingham 
(Lord)  V.  Penrice,  1  P.  Wms.  178  ;  1  Saund.  by  Wms.  288,  n.  (17). 

(a)  10  Co.  127,  b. 

(/>)  10  Co.  127,  b.  See  also  StratTord  (Earl)  v.  Lady  Wentwortli,  Free.  Chan.  555,  cited 
1  P.  Wms.  180.  (c)  Jenncr  v.  Morgan,  1  P.  Wms.  392. 

((/)  Rogers  V.  Pitcher,  G  Taunt.  202  ;f  8.  C,  1  Marsh.  541. 

(e)  Williams  v.  Bartholomew,  1  B.  &.  P.  326, 


(1)  The  same  principle  is  found  in  effect  in  a  dictum  in  Boyer  v.  SmRh,  5  W.  66,  and 
was  decided  in  Glcim  v.  Rice,  6  W.  44  ;  Robhins  v.  Kitchen,  8  \V.  390.  A  tenant  is  estop- 
ped denying  his  landlord's  title  or  setting  up  title  in  any  other;  but  fraud  in  obtaining 
acceptance  of  a  lease  by  a  tenant,  or  after  having  conveyed  in  trust  for  creditors,  are  excep- 
tions to  this  rule, 

'Eng.  Com.  Law  Reps.  i.  355. 


PAYMENT    OF    RENT.  151 

found  that  by  the  terms  of  the  agreement  the  tenant  ought  to  have  paid,  he 
could  not  recover  the  sums  so  deducted  as  arrears  of  rent,(/)  If  a  landlord 
grants  a  lease,  reserving  rent,  and  no  rent  is  paid,  this  is  held  to  be  adverse 
possession,  in  the  same  manner  as  if  rent  had  been  paid  to  the  wrong  per- 
son, (g-) 

One  of  several  joint  tenants  ma}'  demand  and  receive  the  whole  rent  due 
and  give  a  discharge  for  it,  and  such  a  discharge  is  binding  on  his  com- 
panions ;(/j)  so,  upon  a  lease  by  tenants  in  common,  the  survivor  may  sue 
for  the  whole  ;  although  the  reservation  be  to  the  lessors  according  to  their 
respective  interests. (i) 

Where  money  is  paid  by  a  tenant  after  an  act  of  bankruptcy  by  a  land- 
lord who  is  about  to  distrain,  such  payment  will  be  good,  and  cannot  be 
impeached  by  the  assignees. (A')(l)  As  to  the  effect  of  the  wrongful  pay- 
ment of  rent  in  respect  of  the  Statute  of  Limitations,  see  Dig.  P.  iii.  tit. 
Limitations. 

199.  By  the  8  A.  c.  14,  when  the  goods  of  a  tenant  are  taken  in  execu- 
tion the  landlord  may  claim  to  be  paid  a  year's  rent ;  but  in  that  case  there 
must  be  an  existing  tenancy  at  the  time  ;  therefore,  where  growing  crops  of 
a  tenant  were  seized  under  a  fi.  fa.  and  a  writ  of  habere  facias  jwsses- 
sionein  was  subsequently  delivered  to  the  sheriTf  in  an  ejectment  at  the  suit  of 
the  landlord,  it  was  held  that  the  growing  crops  *could  not  be  ps.202l 
legally  considered  as  belonging  to  the  tenant,  he  being  a  trespasser  L 
from  the  day  of  the  demise  laid  in  the  declaration,  and  that  the  sheriff"  was 
not  bound  to  allow  a  year's  rent  under  the  statute,  Avhich  contemplates  an 
existing  tenancy  only  at  the  time  of  the  execution ;(/)  and  the  demand  must 
be  made  while  the  goods  are  in  the  hands  of  the  sheriff';  and,  therefore, 
could  not  be  made  by  an  administrator,  to  whom  administration  was  granted 
after  the  goods  were  sold  under  an  execution  \{m)  and  the  landlord  cannot 
claim  from  the  sheriff'  rent  accruing  due  subsequently  to  the  levy  and  sale 
under  a  fi.fa.,  although  the  goods  were  not  removed  from  the  premises  ;(n) 
but  where  a  person  held  under  an  assignment  of  a  lease  which  by  the  terms 
of  the  agreement  was  not  completed  at  the  time  of  the  fi.  fa.  levied  on  the 
goods  of  the  assignee,  the  sheriff'  nevertheless  was  held  bound  to  pay  the 
lessee  half  a  year's  rent  due  at  the  time  of  the  levy  ;(o)  and  a  sherifl'ought 
0  have  evidence  that  the  rent  is  due.(/)) 

(  f)  Waller  v.  Andrews,  3  M.  vt  W.  312  ;  H.  &  H.  87. 

(£■)  Doe  V.  Oxcndcn,  7  M.  .'t  W    131. 

{!<)  Robinson  v.  Hotf.nan,  4  Bing.  oG2 ;;  S.  C,  3  C.  &  P.  234;  1  M.  &P.  474. 

(i)  Wallace  v.  M'Larcn,  1  Man.  &  Ryl.  51 G.'- 

(k)  Stevenson  v.  Wood,  5  Esp.  200,  See  also  Mavor  v.  Croomc,  1  Bing.  261  ;■  S.  C,  8 
J.  B.  Moore,  171  ;  Darnton  v.  Pia:man,  3  Pcake,  111. 

(Z)  Hodgson  V.  Gascoigne,  5  B.  &  A.  88.'' 

(/«)  Waring  v.  Dewberry,  1  Str.  97.  \n)  Hoskins  v.  Knisfht,  1  M.  Sc  S.  24;'). 

(o)  Saunders  v.  Musgrave,  6  B.  cSo  C.  524  ;'  S.  C,  9  D.  &.  Ryl.  529  ;  2  C.  &i  P.  294.  See 
also  Duck  V.  Braddyl,  13  Price,  455. 

(p)  Keightly  v.  liireh,  3  Campb.  521.  See  also  Dig.  P.  ii.  tit.  Distress,  P.  iii.  tit.  Inter- 
pleader. 


(1)  So  if  assignees  for  creditors  be  permitted  to  remove  on  their  promise  to  pay,  they 
are  entitled  to  a  credit  for  the  amount.     Osborne's  Estate,  5  Wliart.  267. 

615  Eno-.  Com.  Law  Reps.  73.    ''17  Id.  273.     i8  Id.  316.     ^7  Id.  35.    '13  Id.  243. 


152  CRABb's    LAW    OF     REAL    PROPERTY. 

200.  The  statute  extends  to  every  kind  of  execution,  as  for  the  costs  of 
a  nonsuit ;('/)(!)  so,  a  sequestration  has  been  held  to  be  within  the  statute  ;(r) 
so,  notwithstanding  outlawry,  in  a  civil  suii;;(s)  but  bankruptcy  is  not  an 
execution  within  the  statute  ;(/)  and  the  landlord  cannot  retain  a  year's 
rent  acrainst  the  assignees  of  the  tenant  under  the  Insolvent  Act.(.'r)  So, 
before  the  11  G.  4,  and  1  W.  4,  c.  14,  extending  the  provisions  of  the 
8  A.  c.  14  to  the  county  of  Durham,  the  sheriff  was  not  bound  to  pay 
the  landlord  a  year's  rent  out  of  goods  seized  under  a  pone  per  vadios  or 

^  *any  writ  of  extent  thereon,  issuing  out  of  the  Court  of  Pleas  of 

L         J  Durham. (y) 

In  all  cases  a  landlord  is  not  entitled  to  a  year's  rent  as  against  the  claims 
of  the  Crown,  as  where  goods  have  been  seized  under  an  extent  in  aicl.(z) 

Where  there  are  two  executions  on  the  tenant's  goods,  the  landlord  can 
demand  his  year's  rent  under  the  statute  out  of  one  of  them  only. (a) 

201.  As  between  a  mortgagor  and  mortgagee,  the  former  is  not  to  pay  rent 
lo  the  latter  ;(6)  but  since  the  4  A.  c.  16,  dispensing  with  the  necessity  of 
attornment  by  tenants,  notice  to  the  tenant  is  absolutely  necessary  in  order 
to  entitle  the  mortgagee  to  the  rent  ;(c)(2j  and  where  a  tenant  not  having 
received  notice  had  paid  his  lessor,  the  mortgagor,  he  was  excused  from 
paying  it  again  to  the  mortgagee  ;(J)  and  where  a  mortgagee  gives  notice 
to  the  tenant  in  possession  to  pay  the  rent  to  him,  and  he  pays  it  to  the 
assignees  of  the  mortgagor,  a  court  of  equity  will  not  order  them  to  refund 
the  rent  to  the  mortgagee  ;(e)  but  as  to  the  claims  of  a  mortgagee  in  case  of 
the  bankruptcy  of  the  mortgagor,  see  further,  post,  §  205. 

6.  Liabilify  to  pay  Rent  or  otherwise. 

202.  Where  the  law  creates  a  duty  or  charge,  and  the  party  is  disabled 
from  performing  it,  without  any  default  on  his  part,  and  has  no  remedy 
over,  the  law  will  excuse  him,  and  therefore  if  the  tenant  be  evicted  from 

^,  -,  the  lands  demised  *to  him,  he  will  thereby  be  discharged  from  the 
[-204]  p^yjjjgj,^  Qf  rent,(/)  for  as  the  rent  is  something  given  by  way  of 
retribution  for  the  use  and  occupation  of  the  thing  demised,  if  the  tenant  be 

{q)  Henchett  v.  Kimp'on,  2  Wils.  140. 

(r)   Dixon  V.  Smith,  1  Swanst.  457. 

(s)  St.  John's  College  (Oxford)  v.  Murcot,  7  T.  R.  259. 

(()  Lee  V.  Lopes,  15  East,  230. 

Ix)  Taylor  v.  Lanyon,  6  Bing.  536  ;">  4  M.  &  P.  316. 

ly)  Brandling  v.  Barrinp-ton,  6  B.  &  C.  467  ;"  S.  C,  9  D.  &  Ryl.  609  ;  sed  secus  under 
that  Act,  Getliin  v.  Wilks  "2  D.  P.  C.  189. 

(z)  R.  V.  Dceaux,  2  Price,  17  ;  and  sec  also  the  saving  clause  in  11  G.  4  &  1  W.  4,  c. 
II,  s  2  ;  Dig.  ii.  til.  Execution.  ('/)  Dod  v.  Saxby,  2  Str.  1024. 

{!>)  Moss  V.  Gallimore,  1  Dougl.  265.  {r)  Id. 

UJ)  Watts  V.  Oo-nell,  Cro.  Jac.  392,  recognised  in  Birch  v.  Wliitc,  1  T.  R.  384. 

(e)  Ex  parte  Wilson,  1  Rose,  444  ;  S.  C,  2  V.  &  B.  252.         (/)  Gilb.  Rents,  145. 

(1)  And  to  execution  on  the  goods  of  strangers  on  the  property,  Russell  v.  Doty,  4  Cow. 
576  And  to  attachments  under  tlie  act  of  ]  842,  Morgan  v.  Moody.  6  W.  &  S.  333.  And 
to  foreign  attachment,  Peirce  v.  Scott,  4  W.  &  S.  344.  But  the  Pennsylvania  act  does  not 
extend  to  owners  of  ground-rents,  Pattison  v.  McGregor,  S.  C.  Apl.  1845. 

(2)  Post,  §  231. 

■"19  Eng.  Com.  Law^  Reps.  161.     "13  Id.  238. 


P  A  Y  M  E  N  T    O  F    R  E  N  T.  1  53 

deprived  of  the  land,  his  obligation  to  pay  the  rent  ceases  ;(/)  but  where 
a  parly  by  his  own  contract  iaiposes  on  himself  a  duty  or  charge,  he  is 
bound  to  make  it  good,  notwithstanding  inevitable  acciderit,(^^)  therefore 
under  a  covenant  to  pay  rent,  a  lessee  is  bound  to  pay  the  rent  during  the 
term,  although  the  house  be  burnt  down, (A)  and  although  the  case  of  fire 
was  expressly  excepted  under  the  covenant  to  repair,(A)  for  where  a  party 
enters  into  an  absolute  contract  without  any  qualification  or  exception,  and 
receives  from  the  party  with  whom  he  contracts  the  consideration  for  such 
engagement,  he  must  abide  by  the  contract  ;(i)  and  at  law  it  appears  to  be 
settled,  that,  as  a  consequence  of  a  house  being  burnt  down,  a  landlord  in 
the  absence  of  any  stipulation  to  the  contrary  is  not  bound  to  rebuild,  and 
the  tenant  is  bound  to  pay  rent;(A-)  and  a  covenant  that  in  case  the  premises 
are  burnt  down  the  lessor  shall  rebuild,  otherwise  the  rent  shall  cease,  will 
not  be  considered  as  coming  under  the  words  "  usual  covenant. "(/) 

203.  In  some  of  the  earlier  cases  a  court  of  equity  would  grant  an 
injunction  against  the  landlord's  claim  of  rent  until  the  premises  were  re- 
built ;(m)  and  a  similar  decision  was  come  to  in  Steele  v.  Wright, («)  but 
where  there  are  no  special  circumstances,  the  general  rule  prevails,  that 
equity  follows  the  law,(l)  therefore  where  the  tenant  covenanted  to  repair, 
"  damage  by  fire  only  excepted,"  and  the  premises  *being  burnt  psson^il 
down,  the  landlord  refused  to  rebuild  the  premises,  or  take  a  sur-  L 
render  of  the  lease,  and  commenced  an  action  at  law  on  the  covenant  for 
non-payment  of  the  rent  accrued  due  since  the  fire,  on  a  bill  for  an  injunc- 
tion, the  Court  after  full  consideration  decided,  that  as  there  was  no  defence 
against  an  action  at  law,  the  tenant  had  no  remedy  in  equity  against  the 
unrestricted  covenant  to  pay  the  rent,(o)  and  on  this  principle  it  has  been 
decided  that  a  tenant  has  no  equity  to  compel  his  landlord  to  expend 
money  received  from  the  insurance  office,  on  the  demised  premises  being 
burnt  down,  in  rebuilding  the  premises,  or  to  restrain  the  landlord  from 
suing  for  the  rent  until  the  premises  are  rebuilt. (jo) 

(/)  Gilb.  Rents,  145.  (g-)  EaraJinc  v.  Jane,  Al.  27. 

(A)  Monk  V.  Cooper,  1  Sfr.  7G3  ;  S.  C,  2  Ld.  Rayin.  1477,  and  fully  recognised  m  Bel- 
four  V.  Weston,  1  T.  R.  310,  wliieh  was  precisely  a  similar  case. 

(i)  Bealc  v.  Thompson,  3  B.  &  P.  420.     See  also  Baker  v.  Holzapfel,  4  Taunt.  45. 

(k)  Pindar  v.  Ainslcy,  cited  1  T.  R.  312 ;  also  in  Doc  v.  Sandham,  Id.  710. 

(Z)   Doe  V.  Sandham,  sup. 

(w)  Brown  v.  Quilter,  Ambl.  619  ;  S.  P.,  Camden  v.  Morton,  2  Eden,  219. 

(n)  1  T.  R.  708. 

(0)  Hare  v.  Groves,  3  Anst.  687,  recoo^niscd  and  acted  upon  in  Holzapfel  v.  Baker,  18 
Ves.  115.  (p)  ChceUiam  v.  Lccd,  1  Sim.  146. 

(1)  This  rule  has  generally  prevailed  in  the  United  States  as  to  covenants  for  payment 
of  rent  in  case  of  destruction  of  the  building-  by  fire.  Lamott  v.  Stcrrct,  1  Harr.  & 
John.  42.  Fowler  v.  Bott,  6  Mass.  63.  Gates  v.  Colvin,  4  Paige,  355 ;  or  in  case  of  an 
eviction  by  an  invading  army.  Wagner  v.  White,  4  Harr.  &.  John.  564.  Pollard  v. 
Siiaffer,  1  Dall.  210  ;  thougii  in  tlie  latter  case  it  was  considered  a  de'ence  to  a  covenant 
to  repair.  In  Ripley  v.  Wightman,  4  M'Cord,  447,  it  was  however  held,  that  where  a 
hurricane  rendered  an  house  untenantable,  this  was  a  good  defence  to  a  distress  for  rent; 
and  in  Kerr  v.  Merchants'  Exchange,  3  Edwd.  C.  R.  315,  it  was  held  where  the  demise 
was  of  a  room  merely,  and  the  premises  were  rebuilt,  the  lessee  was  not  entitled  to  a  room 
in  the  new  building.  S.  P.  Uniton  v.  Cornish,  5  Ohio,  303.  If  he  were  liable  on  hie 
covenant  for  rent  in  such  a  case,  a  great  absurdity  would  ensue. 


154  CR abb's    law  of  real   property. 

204.  If  the  lands  demised  be  evicted  from  ihe  tenant  or  recovered  by  a 
title  paramount,  the  lessee  is  for  the  reason  before  mentioned^j)  discharged 
from  the  payment  of  the  rent  from  the  time  of  such  eviction  ;  but  notwith- 
standing such  recovery  or  eviction,  the  tenant  shall  pay  the  rent  that  became 
due  before  the  recovery,  and  therefore  rent  due  from  a  lessee  was  held  not 
to  be  extinguished  by  the  lands  being  extended  by  the  queen,  though  it 
accrued  between  the  extent  and  the  liberate  ;(r)  because  the  enjoyment  of 
the  land  being  the  consideration  for  which  the  tenant  was  obliged  to  pay 
the  rent,  so  long  as  the  consideration  continued,  the  obligation  must  be  in 
force  ;(s)  but  a  plea  of  mere  entry  by  the  lessor,  or  destruction  by  him  of 
part  of  the  premises,  without  alleging  an  actual  expulsion,  is  not  sufficient, 
for  these  are  simple  trespasses. (/)(1) 

205.  For  the  same  reason  if  part  only  of  the  land  let  be  evicted  from  the 
,^    --,  tenant,  such  eviction  is  a  discharge  of  *lhe  rent  in  proportion  to  the 

L  "*  -  land,(w)  although  formerly  where  a  tenant  was  evicted  before  the 
day  appointed  for  the  payment  of  the  rent,  such  eviction  discharged  the 
tenant  from  the  payment  of  any  rent;  because  before  the  11  G.  2,  c.  19, 
there  could  be  no  apportionment  in  respect  of  part  of  lime,  as  there  might 
be  in  respect  of  part  of  the  land.     See  further,  post,  §  220. 

So,  where  a  tenant  from  year  to  year,  at  a  rent  payable  half  yearly, 
quitted  at  the  end  of  a  current  year  without  giving  notice,  and  the  landlord 
relet  the  premises  before  the  end  of  the  next  half  year,  it  was  held  that  he 
had  evicted  the  first  tenant  and  could  not  recover  rent  subsequent  to  the 
period  when  he  quitted  ;(x)  and  so,  when  lands  have  been  let  to  one  who 
underlet  to  others,  and  the  latter  receive  notice  to  quit  from  the  original 
landlord,  in  consequence  of  which  one  of  them  quits,  and  the  premises 
remain  unoccupied,  this  was  held  to  amount  to  an  eviction,  and  the  landlord 
could  not  recover  for  the  unoccupied  premises  ;{y)  so,  where  in  consequence 
of  disputes  between  a  landlord  and  a  tenant,  the  latter  said  he  would  leave, 
to  which  the  former  assented,  he  could  not  recover  the  quarter's  rent  ;(r) 
but  putting  up  a  bill  to  let  the  premises  which  the  tenant  had  quitted 

(q)  See  ante,  §  202.  (r)  Playne's  case,  Cro.  El.  47. 

(s)  Hob.  82;  1  Inst.  143;  2  Roll.  Abr.  429. 

(t)  Reynolds  v.  Buckle,  Hob.  326.  (i/)  Dj.  56;  10  Co.  128  a. ;  Roll.  Abr,  235. 

(x)  Hall  Y.  Burgess,  8  D.  &  R.  67.  {y)  Burn  v.  Phelps,  1  Stark.  94.» 

(«)  Griinman  v.  Legge,  8  B.  Al  C.  324  ;■■  S.  C,  2  .Man.  &  Rjl.  43S. 

(1)  Eviction  has  no  effect  on  rent  in  arrear.  Kessler  v.  Conachy,  1  Rawle,  442  ;  except  as 
a  set-off  for  damages  ensuing  therefrom,  per  Gibson,  C.J.  Hemphill  v.  Eckteldt,  5  Whart. 
278.  And  there  is  a  distinction  between  an  eviction  by  title  paramount  or  a  mere  entry, 
but  no  expulsion,  into  part  of  the  premises  by  the  landlord,  in  which  case  the  defence  is  pro 
tanto,  Lansing  v.  Van  AJstine,  2  Wend.  561.  Bennett  v.  Bittle,  4  Raw  339;  and  a  wanton 
eviction  by  the  landlord  from  any  part  of  the  premises  or  thing  demised.  Dyott  v.  Pen- 
dleton, 8  Cow.  730.  Vaughan  v.  Blanchard,  1  Yeat  175,  4  I 'all.  124,  when  the  whole 
rent  is  suspended.  And  this  eviction  may  be  constructive,  as  by  riotous  and  indecent  con- 
duct  on  part  of  the  premises  reserved,  which  compelled  the  tenant  to  seek  another  habita- 
tion; or  by  a  wrongful  distress  by  a  landlord  who  had  granted  the  reversion  and  rent 
incident  thereto,  reserving  a  rent.  Lewis  v.  Payne,  4  AVend.  423.  Xor  is  a  tenant  bound 
to  resist  the  grantee  of  his  landlord  though  he  might  do  so  lawfully,  but  a  submission  to 
such  a  grant  will  be  an  eviction  by  the  landlord.  M'Elderry  v.  Flaunagin,  1  Harr.  v. 
Gill,  308. 

»2  Eng.  Com.  Law  Reps.  310.     ns  Id.  229. 


PAYMENT     OF     REN  T.  155 

without  giving  the  proper  notice,  did  not  prevent  the  landlord  from  recov- 
ering/ff] 

Where  premises  are  let  at  an  entire  rent,  an  eviction  from  part,  if  the  tenant 
thereupon  give  up  possession  of  the  residue,  is  a  complete  defence  to  an 
action  for  use  and  occupation  ;(6)  but  if  the  tenant  after  the  eviction  con- 
tinue in  possession  of  the  residue,  he  is  liable  upon  a  quantum  meruit.{c) 
See  further  as  to  apportionment  of  rent,  post,  5  210,  and  as  to  discharge  of 
rent  by  extinguishment,  see  post,  §  208. 

The  lessee  being  a  party  to  the  original  contract,  continues  *al-  p^««-i 
ways  liable  for  rent,  notwithstanding  any  assignment  :{d)  the  privity  L  J 
of  contract  between  the  lessor  and  the  lessee  not  being  thereby  discharged. (e) 
An  assijrnee  on  the  other  hand  is  liable  only  when  he  continues  in  posses- 
sion, for  his  obligation  arises  out  of  a  privity  of  estate  between  him  and 
the  assignor,  and  ceases  as  soon  as  that  privity  ceases  •,{f\  he  is,  therefore, 
not  liable  for  rent  accruing  after  the  assisrnment  o%-er,  although  the  assign- 
ment be  wrongful  ;(^)  an  assignee  has  however  been  held  liable  in  equity, 
although  the  privity  of  estate  has  been  destroyed,  so  far  as  to  account  for  the 
rent  the  whole  time  he  enjoyed  the  land  ',[h)  but  it  is  not  settled  whether 
an  assignee  would  be  restiained  from  assigning  over  to  a  beggar.(j) 

On  the  principle  of  the  continued  liability  of  the  lessee,  bankruptcy  was 
held  not  to  discharge  him  from  his  express  covenant  ;(^-)  so,  where  a  dispo- 
sition of  a  lease  has  been  made  by  virtue  oia.fi.fa.  or  an  elegit,  the  tenant 
continues  liable  under  the  lease  ;'A:\  and  so,  although  the  estate  and  interest 
of  a  covenantee  be  divested  out  of  him  by  Act  of  Parliament,  yet  without  a 
special  clause  to  release  him,  he  is  still  liable  upon  his  express  covenant. (A-) 
In  case  of  bankruptcy,  the  6  G.  4,  c.  16,  has  made  provision  to  relieve  the 
bankrupt  lessee  from  his  liability  to  the  rent  and  covenants  of  his  lease. 

206.  A  tenant  from  year  to  year,  who  is  under  no  obligation  to  repair, 
may  quit  without  any  previous  notice,  upon  the  premises  becoming  unsafe 
for  want  of  repair  or  unwholesome  for  want  of  drainage,(/y(l)  and  he  will 
not  be  liable  *for  any  rent  after  the  occupation  has  ceased  to  be  bene-  ^^2081 
ficial  ;fm)  and  so  where,  in  doing  the  repairs,  the  house  is  rendered  •- 
unfit  for  the  habitation  of  the  tenant  or  his  lodgers  ;(n)  so,  on  the  same  prin- 
ciple where  a  landlord  by  his  misconduct  justifies  a  tenant  in  abruptly  quit- 
ting during  a  tenancy  for  a  limited  period,  he  can  recover  rent  only  for  the 

(«)  Redpath  v.  Roberts,  3  Esp.  225.  Qf)  Smith  v.  Raleigh,  3  Campb.  513. 

(c)  Stokes  V.  Cooper,  3  Campb.  514.  (rf)  Eaton  v.  Jacques,  2  Doue.  455. 

(*•)  Hornby  v.  Houlditch,  1  T.  R.  93,  n ;  (a  Tovey  v.  Pitcher,  Carth.  177  ;  S.  C,  Salk. 
80  ;  2  Vent.  228 ;  4  Mod.  71 ;  3  Lev.  2:)5 ;  Boulton  v.  Canon,  1  Frcem.  326 ;  S.  P.,  Cooke 
V.  Harris,  1  Ld.  Ravm.  363 ;  Kniehtlev  v.  Buckley,  1  Lev.  215. 

( 0  Paul  V.  Nurse,  2  :\Ian.  .V  Ryl.  525. 

(?)  lb.;  but  see  Knight  v.  Freeman,  1  Vent,  329  ;  and  contri,  Le  Keui  v.  Nash,  2  Str 
1221  ;  Bull.  N.  P.  159.  (/i)  Treacle  v.  Coke,  1  Tern.  165. 

(i)  Philiwt  v.  Hoare,  2  Atk.  219  ;  S.  C,  Ambl.  480 ;  Fonbl.  Eq.  Tr.  351,  n. ;  Bac.  Abr 
tit.  Covenant,  '  E.  4.)  (k)  Auriol  v.  MiUs,  4  T.  R.  94. 

(/)  Collins  V.  Barrow,  1  Mood.  &  Rob.  112.  (m)  lb. 

(«)  Edwards  v.  Hetherington,  7  D.  &  Rvl.;»  S.  C,  Rv.  &  Mood.  268;  S.  P.  Salisbury 
V.  Marshall,  4  C.  &.  P.  65." 

(1)  Ante,  199,  n.  2. 
'16  Eng.  Com.  Law  Reps.  271.    '  19  Id.  275. 


156  crabb's   law   of   real   property. 

time  that  there  has  been  an  actual  occupation  ;(o)  so,  where  a  colliery 
became  not  worth  working  and  the  lessee  offered  to  pay  for  all  the  coal  that 
could  be  got,  he  was  relieved  in  equity  against  the  future  rent,  and  the 
covenants  ;{p)  but  where  A.  agreed  to  purchase  B.'s  equitable  interest  in 
land  for  a  term  of  years  at  a  rent  specified,  it  was  held  that  after  paying  the 
rent  for  several  years  and  acknowledging  that  a  further  sum  was  due,  he 
could  not  resist  B.'s  claim  for  such  further  rent,  by  shewing  that  he  was  not 
able  to  use  the  land.(g) 

207.  An  executor  is  liable  for  arrears  of  rent  incurred  in  the  lifetime  of 
his  testator,  for  although  the  person  of  the  ter-tenant  was  not  chargeable 
with  the  rent  at  law,  but  only  the  land  by  way  of  distress,  yet  it  was  held 
that  his  executor  should  pay  the  arrears  as  far  as  he  had  assets  ;(r)  but  an 
executor  may  rehnquish  the  lease,  if  the  property  be  insufficient  to  pay  the 
rent.(s)  If  however  he  enters  on  the  demised  premises,  he  becomes  an 
assignee,  and  in  that  character  he  is  liable  to  the  lessor  ;(<)  but  where  one 
of  two  executors  entered,  such  entry  was  held  not  to  accrue  as  the  entry  of 
the  two,  so  as  to  make  them  both  liable  ;(?/)  and  where  the  party  is  charged 
as  executor  or  administrator,  he  is  liable  to  the  extent  of  assets,  but  when  as 
^  assignee,  only  to  the  extent  *of  the  profits  received  in  respect  of  the 

L  J  particular  premises  ;(i')  but  it  seems  not  settled  whether  there  is 
any  distinction  between  an  executor  and  an  administrator.(^^) 

U  the  whole  rent  incurs  in  the  lifetime  of  the  testator,  the  action  to 
recover  it  from  the  executor  must  be  brought  against  him  in  his  representa- 
tive character,(a?)  see  further  as  to  the  recovery  of  rent,  post,  §  221. 


V.  s^rtinguishmcnt  anti  ^uspenisfou  of  IXmt 


§  Q08.  Dischargee  by  Extinguishment. 
Suspension. 

Distinction  between  Rent-Service 
and  Rent-Charg-e. 


§  209.  E.xtinofuishinent  by  Conjunction  of 
Estates. 

by  Confirmation, 
by  Grant. 
by  Purchase. 
209.  Extinguishment  by  Lease. 


208.  As  the  tenant  is  discharged  from  the  payment  of  rent  when  the 
land  is  evicted  by  a  title  paramount,  so  by  a  parity  of  reason,  he  shall  be 
discharged  from  such  payment  when  the  lord  purchases  the  tenancy,  for  in 

(o)  Kirkman  v.  Jarvis,  7  D.  P.  C.  678. 

(p)  Brown  v.  Morris,  2  B.  C.  C.  311;  and  sec  also  Jones  v.  Shears,  7  C.  &  P.  346.» 

Iq)  Connelly  v.  Baxter,  2  Stark.  5--25.i>     (r)  Eton  College  v.  Beauchamp,  1  Chan.  Ca.  121. 

(s)  Reid  V.  Ld.  Tenterden,  4  Tyr.  Ill,  (t)  Went.  Otf.  Ex.  120. 

(u)  Nation  v.  Tozer,  1  C.  M.  &  R.  172;  S.C,  4  Tyrw.  561. 

(r)  Rubery  v.  Stevens,  4  B.  &  Ad.  241.=  See  also  Hargrave's  case,  5  Co.  3;  Bolton  v. 
Canham,  Freem.  327;  S.C,  Pollexf.  125;  Helicr  v.  Casebest,  1  Lev.  127;  Buckley  v. 
Pirk,  1  Salk.  316;  Rrmnant  v.  Bremridge,  8  Taunt.  191 ;'  S.  C.  2  J.  B.  Moore,  94. 

(w)  Tremeere  v.  Morrison,  1  Bing.  N.  C.  89  ;«  S.  C,  4  Moore  &,  Sc.  603. 

(x)  1  Roll.  Abr.  603  (S.)  pi.  9 ;  Fruen  v.  Porter,  1  Sid.  379. 

>32   Eng.  Com.  Law  Reps.  537.     ^2  Id.  458.    '24  Id.  50.    ^i  Id.  66.     ^27  Id.  315. 


EXTINGUISHMENT   AND    SUSPENSION    OF    RENT.  157 

sucli  case  the  lord  cannot  have  both  the  land  and  the  rent,  nor  shall  the 
tenant  be  under  any  obligation  to  pay  the  rent,  when  the  land,  which  was 
the  consitleration,  is  resumed  bj^  the  lord  into  his  own  hands :  and  this 
resumption  or  purchase  of  the  tenancy  by  the  lord  makes  what  is  called  ia 
the  books  an  extinguishment  of  the  rent ;(»/)( 1 )  but  if  the  conveyance  lo  the 
lord  was  not  absolute,  but  upon  condition,  or  if  it  were  only  of  a  particular 
estate  of  shorter  duration  than  the  estate  which  the  lord  had  ni  the  rent- 
service,  in  these  cases,  though  *there  were  a  union  of  the  tenancy  ^^g,^-i 
and  the  rent  in  the  same  hand,  yet  as  this  union  was  but  temporary  L  J 
(for  upon  the  performance  of  the  condition  or  determination  of  the  particu- 
lar estate,  the  tenant  is  restored  to  the  enjoyment  of  the  land,  and  cons'e- 
quently,  the  obligation  to  pay  the  rent  revives)  therefore  the  rent  in  such 
case  was  only  suspended,  and  not  extinguished  ;(z)(l)  so,  if  land  descend  to 
two  co-parceners  in  fee,  one  of  whom  had  a  rent-charge  in  fee,  issuing  out 
of  the  land,  the  rent  it  seems  is  suspended  until  partition  made.(f/)  ' 

A  distinction  has  however  been  taken  between  a  rent-service  and  a  rent- 
charge,  for  if  a  man  who  has  a  rent-service  purchases  part  of  the  land  out 
of  which  the  rent  issues,  the  rent-service  is  not  extinguished  but  appor- 
tioned, so  that  such  purchase  is  a  discharge  to  the  tenant  for  so  much  of  the 
rent  only  as  the  value  of  the  land  purchased  amounts  to;(6)  but  if  a  man 
has  a  rent-charge  and  purchases  part  of  the  land  out  of  which  the  rent  issues, 
the  whole  rent  is  extinguished  and  the  tenant  consequently  discharged  from 
the  payment  of  it,  and  the  reason  for  this  extinguishment  is — that  the  rent 
is  entire,  and  issuing  out  of  every  part  of  the  land, (2)  therefore  by  purchase 
of  part  it  is  extinct  in  the  whole  and  cannot  be  apportioned,  for  a  rent-charge 
was  ajjainst  common  ricjht,  and  the  law  carried  such  contracts  into  execution 
only  so  far  as  the  rent  could  take  effect  according  to  the  original  intention  of 
them  ;  when  therefore  the  grantee  purchases  part  of  the  land,  it  becomes 
impossible,  by  his  own  act,  that  the  grant  should  have  its  due  operation  ;(c) 
but  this  rule  is  confined  to  cases  where  it  is  the  act  of  the  party. (Jv 

209.  There  may  be  an  extinguishment  in  different  ways,  as  by  a  conjunc- 
tion of  estates,  as  where  A.  leases  to  B.  for  100  years,  and  B.  leases  to  C. 
for  20  years,  rendering  *rent ;  A.  granted  the  reversion  to  J.  S.,  r-^nii-\ 
and  J.  S.  purchased  the  reversion  of  the  term,  held  that  J.  S.  shall  L  -■ 
have  neither  the  rent  nor  the  re-entry, (e)  If  A.  devises  rent  to  B.,  and 
afterwards  makes  B.  executor,  there  this  rent  shall  be  extinct,  but  where  a 
man  devises  the  term  to  one,  and  a  rent  out  of  it  to  another,  and  afterwards 
makes  him  to  whom  the  rent  was  devised  his  executor,  he  may  now  elect  to 
have  this  as  legatee. (/) 

So  rent  may  be  extinguished  by  confirmation,  as  where  a  lease  was  made 
for  life  rendering  rent,  and  after  the  lessor  granted  and  confirmed  the  same 

(V)  Clun's  case,  10  Co.  128;  Vaugh.  109  ;  Pollc.xf.  142. 

(2)  Bro.  Extinguislimcnt,  (1) ;  Vaugh.  39,  299  ;  Pollcxf.  142. 

(./)  1  Inst.  149,  b;  1  Roll,  Abr.  236.  (h)  Litt.  s.  222;  TalbotV  case,  8  Co.  lOo. 

(r)  1  Inst.  147,  b  ;  Gilb.  Rents,  152.     .  {d)  See  infra,  §  209. 

(e)  Lord  Trcausurer  v.  Barton,  Moor,  94,  pi.  232, 

(/)  Gough  V.  Howard,  3  Bulst.  122. 

(1)  Phillips  V.  Bonsall,  1  Frm.  142. 

(2)  Crawford  v.  Crawford,  2  VV.  240.     Sod  qucrv  Addams  v,  Helfenstein,  9  W.  529. 
July,  1846,-11 


158         crabb's  law  of  real  property. 

tenements,  the  better  opinion  was  that  by  this  the  rent  was  extinct  ;(^)  so, 
where  lessee  of  twenty  acres  rendering  rent,  grants  all  his  estate  in  one  of 
the  acres  to  J.  S.,  and  the  lessor  confirms  the  estate  of  J.  S.,  that  the  entire 
rent  was  held  to  be  gone  in  the  other  acres,  being  an  entire  contract  ;(/i)  but 
if  a  man  has  a  rent-charge  out  of  certain  land  and  he  confirms  the  estate 
which,  the  tenant  has  in  the  land,  yet  the  rent-charge  remains  to  the  con- 
firmor.(/) 

So,  by  grant  there  may  be  an  extinguishment,  as  where  a  lease  was  made 
of  100  acres  of  land  renderinfj  rent,  and  afterwards  the  lessor  granted  50 
acres  of  it,  it  was  held  that  the  grantee  should  not  have  any  part  of  the  rent, 
but  it  was  all  destroyed  ;(A')  so,  if  the  grantee  of  a  rent-charge  grants  it  to 
the  tenant  of  the  land  and  a  stranger,  it  shall  be  extinguished  but  for  the 
moiety,  and  so  it  is  of  a  seignory ;(/)  so  limiting  a  remainder  over  of  the 
land  by  him  to  whom  the  rent  was  first  reserved  upon  the  render  by  fine  of 
the  land  entailed,  was  held  to  be  extinguishment  of  the  rent,  and  that  it 
could  not  go  to  the  remainderman. (?n) 

T-oxoi  ^°'  ^^^^^  "^^y  ^^  extinguishment  by  purchase  of  parcel  *of  the 
*-  J  land,  as  where  an  annual  sum  is  granted  out  of  lands,  so  that  it  may 
be  rent  or  annuity  at  the  election  of  the  grantee,  if  the  grantee  purchases 
parcel  before  election,  he  cannot  make  election  afterwards,  but  the  whole  is 
extinguished ;(??)  because  the  law  prima  facie  says,  that  this  was  a  rent- 
charge  and  not  an  annuity  ;(o)  but  if  before  election  parcel  descends  on  the 
grantee,  if  he  brings  writ  of  annuity,  the  annuity  is  rrot  apportionable,  but 
he  shall  have  the  annuity  entirely. (/))  And  see  further  as  to  the  distinction 
between  a  rent-service  and  a  rent-charge  in  case  of  such  purchase,  ante,  §  208. 

So  there  may  be  extinguishment  by  release,  as  if  the  lessor  grants  to  the 
lessee  for  life,  that  he  shall  be  discharged  of  the  rent,  this  is  a  good 
release ;((y)  but  there  is  a  diversity  between  several  estates  in  several  lands, 
and  several  estates  in  one  land ;  for  if  there  be  tenant  for  life  of  lands,  the 
reversion  in  fee  over  to  another,  if  they  two  join  in  a  grant  of  a  rent  out  of 
the  lands,  if  the  grantee  releases  either  to  him  in  reversion  or  to  tenant  for 
life,  the  whole  rent  is  extinguished,  for  it  is  but  one  rent  and  issues  out  of 
both  estates  ;(r)  so,  if  two  tenants  in  common  of  land  grant  a  rent-charge  of 
forty  shillings  out  of  the  same  to  one  in  fee,  and  the  grantee  releases  to  one 
of  them,  this  shall  extinguish  but  twenty  shillings,  for  that  the  grant  in 
judgment  of  law  is  several  ;(s)  so,  by  the  release  of  a  seignory  a  rent-charge 
is  extinct ;(/)  so,  if  a  lease  be  made  to  begin  at  Michaelmas,  reserving  a  rent, 
and  before  the  day  the  lessor  releases  all  the  right  that  he  has  in  the  land, 
this  cannot  enure  to  enlarge  the  estate  but  to  extinguish  the  rent;(M)  so, 
where  lessee  for  years  assigns  the  term,  and  lessor  releases  all  demands  to 
the  first  lessee,  this  does  not  determine  the  rent,  being  after  the  assignment 
-,  of  the  term,  *only  rent  due  before  the  release  may  be  extinct  by  the 
'-       '  -•  release. (.r)     So,  there  may  be  an  extinguishment  of  rent  by  surren- 

(£■)  Bro.,  Extinguishment,  pi.  28,  citing-  22  Ass.  18. 

(h)  Gofldard's  case,  Ow.  10.  (r;  Litt.  s.  536. 

(A)  Wiseman  v.  Warreno-cr,  2  Leon.  252,  pi.  339,  citing  32  H.  8.         {I)  1  Inst.  307,  b. 

(?«)  Wliite  V.  Gerishc,  Moor,  575.  {n)  Fulwood  v.  Ward,  2  And.  4. 

[u)  Sprint  v.  Hicks,  2  Bulstr.  149.  (p)  Fulwood  v.  Ward,  sup.  (<?)  1  Inst  264, 

<r)  Id.  267.  (sj  1  Inst.  267,  b.  (0  W.  305. 

(w)  Id.  270,  a.  b.  citing  Woodiiouse  v.  Paston. 

(x)  Collins  V.  Harding,  Moor.  544,  pi.  723. 


APPORTIONMENT    OF     RENT. 


159 


iler,  as  where  lessee  for  twenty  years  leases  for  ten  years,  and  afterwards 
surrenders  the  term,  the  rent  is  gone,  and  the  term  for  ten  years  con- 
tinues.(y) 


VI.  ^|j4jovtionmcut  of  iUut. 

I.  in  respect  of  l^ait  of  tijc  Hanti. 
a.   When  Apportioiwient  is  absolutely  admitted. 


^  210.  In  case  of  Descent. 
In  case  of  a  Grant. 
In  case  of  a  Devise. 
In  case  of  a  Recovery, 


§  211.  In  case  of  Re-entry. 
What  an  Eviction. 
In  case  of  Surrender. 
In  case  of  Purchase. 


b.  ^Apportionment  admitted  or  otherwise. 


212.  Distinction  between  Grant  of  Rent 

and  Reservation  of  Rent. 

213.  Distinction  where  it  is  by  Act  of  Uie 

Party,  of  the  Law,  or  of  God. 
By  Act  of  the  Party. 

214.  By  Act  of  Law. 

215.  Other  Cases  of  Rent   apportionable 

by  Act  of  Law. 


21 G.  By  Act  of  God. 

217.  No  Apportionment  where  Rcnt-Ser- 

vice  is  entire. 

218.  Distinction  between  Rent  in  Gross 

and  Rent  incident  to  the  Revcr. 
sion. 


c.  Manner  of  making  ^Apportionment. 

219.  By  the  Jury.  |      219.  Upon  what  Pleas. 

II.  ^[pportionmcnt  fti  respect  of  i3.irt  of  STinte. 

220.  At  Common  Law.  |      220.  By  statute. 


210.  Apportionment  of  rent  is  of  two  kinds;  namely,  first,  in  respect  of 
part  of  the  land,  and  next  in  respect  of  time, 

I.  En  respect  of  ^3art  of  \\)z  3Lanti. 

This  kind  of  apportionment  may  be  considered — first,  as  to  the  cases 
where  such  apportionment  is  absolutely  admitted ;  *and  next  as  p^^,  .-. 
to  the  cases  where  it  is  or  is  not  admitted ;  and  lastly,  as  to  the  L  ^ 
manner  of  making  the  apportionment. 

a.   JVhere  Apportionment  is  absolutely  admitted. 

Rent  may  be  apportioned  as  it  is  extinguished  by  different  means,  thu?, 
it  may  be  apportioned  by  descent,  as  if  a  man  has  a  rent-charge,  and  his 
father  purchases  parcel  of  the  tenements  charged  in  fee,  and  dies,  and  this 

(y)  Blackstone  v.  Ilcath,  Godb.  279,  pi.  396. 


160  CR  abb's  law  of   real  prove  rty. 

parcel  descends  to  his  son  who  has  the  rent-charge,  now  this  charge  shall 
be  apportioned  according  to  the  value  of  the  land,  because  such  portion  of 
the  land  purchased  by  the  father  comes  to  the  son  not  by  his  own  act,  but 
by  descent  and  course  of  law  ;{z)  and  so,  if  the  father  be  grantee  of  a  rent, 
and  the  son  purchases  part  of  the  land  charged,  and  after  the  death  of  the 
father  the  rent  descends  to  the  son,  the  rent  shall  be  apportioned ;(«) 
but  as  a  rule  a  rent-charge  cannot  be  apportioned  by  the  act  of  the  party, 
yet  to  this  rule  there  are  exceptions,  for  if  the  grantee  releases  part  of  his 
rent  to  the  tenant  of  the  land,  such  release  does  not  extinguish  the  whole 
rent  ;{b)  so,  if  the  grantee  gives  a  part  of  it  to  a  stranger,  and  (before  the  4 
A.  c.  16,  the  tenant  had  attorned)  such  release  makes  no  alteration  in  the 
original  grant  ;(6)  so,  if  a  rent-charge  be  extended  for  debt  it  is  apportiona- 
ble  ;(c)  a  rent-service  in  the  like  case  is  always  apportionab]e.((/) 

So  there  may  be  an  apportionment  in  the  case  of  a  grant. (1)  Although 
it  was  at  first  doubted  whether  a  rent-service  incident  to  the  reversion 
^  might  be  apportioned  by  a  grant  of  part  of  the  reversion,  yet  it  is  now  other- 
wise settled,  and  it  has  been  accordingly  determined  that  if  a  man  makes  a 
lease  of  three  acres,  each  of  equal  value,  rendering  three  shillings  rent,  and 
r*2l51  ""'^^  lessor  grants  the  reversion  of  one  *acre,  the  grantee  shall  have 
L  -I  I2d.  rent,  for  although  it  was  one  lease,  one  reversion,  and  one 
rent,  yet  that  was  incident  to  the  reversion,  which  was  severable  ;(c)  so,  if 
A.  seised  of  one  acre  in  fee,  and  possessed  in  a  term  for  years  in  another, 
grants  a  rent  out  of  both  to  B,  in  fee,  and  B.  takes  a  lease  or  grant  of  the 
leasehold  acre,  the  rent  shall  not  thereby  be  suspended.(/) 

So,  there  may  be  an  apportionment  by  devise,  as  if  A.  possessed  of  a  term 
for  twenty  years,  leases  it  for  ten  years,  reserving  30/.  rent,  and  afterwards 
A.  devises  20/.  of  the  rent  to  three  of  his  sons,  equally  to  be  divided  between 
them,  it  Avas  held  that  this  was  a  good  devise,  and  each  of  the  sons  should 
have  his  action  of  debt  for  his  third  part.(o-) 

So,  there  may  be  an  apportionment  in  case  of  a  recovery;  therefore,  if 
part  of  the  land  be  recovered  the  rent  shall  be  apportioned  ;(/i)  so,  if  the 
father  within  age  purchases  parcel  of  the  land  charged,  and  aliens  within 
age,  and  dies,  and  the  son  recovers  or  enters,  yet  the  land  shall  be  appor- 
tioned ;(ij  so,  where  a  man  seized  in  fee  lakes  a  wife  and  makes  a  feofT- 
ment,  the  feoffee  grants  a  rent-charge  of  10/.  out  of  the  land  to  the  husband 
and  wife  and  the  heirs  of  the  husband,  the  husband  dies,  and  the  wife 
recovers  the  moiety  for  her  dower,  held  that  the  rent-charge  should  be 
apportioned,  and  she  might  distrain  for  her  share  of  the  rent  ;(A:)  and  in  some 
cases  a  rent-charge  shall  not  be  wholly  extinct  where  the  grantee  claims 

(?)  Liu.  s.  224.  (.,)  Id.  149,  b.  (h)  Id.  148. 

{r)  Wootton  v.  Sliirt,  Cro.  El.  742.  (d)  See  ante,  §  208. 

(p)  VV'ild's  case,  8  Co.  Ti)  I).  See  also  Huntly's  case,  l)y.  326  ;  Swinnerton  v.  Miller, 
Hob.  177  ;  Collin^s  v.  Harding,  Cro.  El.  606,  13  Co.  57  ;  Moor,  544. 

(/)  Butt's  case";  7  Co.  23. 

{C)  Ards  V.  Watkins,  Cro.  El.  637.  See  also  Huntly's  case,  Dy.  326 ;  Moor.  737; 
Ewer  V.  Movie,  Cro.  El.  771  ;  Roll.  Abr.  234. 

(/;)  Bro.  Apportionment,  pi.  24  ;  Moor.  114  ;  1  Inst.  114,  a. 

(«")  llnst.  150,  a.  (A)  Id.  234,  a. 

(1)  Wherever  the  reversioner  or  owner  of  the  rent,  either  releases  part  of  the  rent  to  the 
tenant  or  conveys  part  to  a  stranger.     Farley  v.  Craig,  6  Halst.  263. 


APPORTIONMENT     OF     RENT.  161 

from  and  under  the  gvantor,  as  if  B.  makes  a  lease  of  one  acre  for  life  to  A. 
and  A.  is  seised  of  anotlier  acre  in  fee,  and  A.  grants  a  rent-charge  to  B. 
out  of  both  acres,  and  does  waste  in  the  acre  which  he  holds  for  life,  and 
B.  recovers  in  an  action,  the  whole  rent  is  not  extinct  but  shall  be  appor- 
tioned and  yet  *B.  claims  under  A.  ;(/)  so,  if  the  Q,ueen  gives  two  p^o,rt-| 
acres  of  land  of  equal  value  to  another  in  fee,  fee-tail,  for  life  or  years  L  -^ 
reserving  a  rent  of  two  shillings,  and  the  one  acre  is  evicted  by  a  title  para- 
mount, the  rent  shall  be  apportioned. (m) 

211.  So,  there  may  be  an  appointment  on  a  re-entrj'-,  but  where  the  books 
speak  of  an  apportionment  in  case  where  the  lessor  enters  upon  the  lessee 
in  part,  they  are  to  be  understood  when  the  lessor  enters  lawfully,  as  upon 
a  surrender,  forfeiture  and  the  like,(n)  but  if  the  lessor  act  ministerially, 
as  sheriff!  in  the  eviction  of  the  tenant,  this  will  not  suspend  the  rent  ;(o) 
so,  a  mere  trespass  by  the  lessor  will  be  no  suspension  of  the  rent ;(/))  so, 
where  a  right  of  common  is  recovered  by  the  inhabitants,  where  part  of  the 
lands  lie  which  have  been  let  to  the  lessee,  this  has  been  held  not  to  be  such 
an  eviction  as  b}^  the  rules  of  the  common  law  shall  make  an  apportionment 
of  the  rent ;   for  the  soil  still  remains  in  the  lessee. (y) 

To  occasion  a  suspension  of  the  rent,  there  must  be  an  eviction  or  expul- 
sion of  the  lessee  out  of  all  or  some  part  of  the  demised  premises, (r)(l) 

Whether  there  may  be  a  suspension  in  part  is  not  so  settled  ;  my  Lord 
Coke  lays  it  down  broadly,  that  although  a  rent-service  may  be  extinct  for 
part,  and  apportioned  for  the  rest,  yet  it  cannot  be  suspended  in  part  and  in 
esse  for  the  rest ;(«')  but  the  better  opinion  appears  to  be,  that  in  the  case 
at  least  of  a  tortious  entry  by  the  lessor,  the  tenant  shall  be  discharged  from 
the  payment  of  the  whole  rent  until  he  be  restored  to  the  whole  possession. (/) 
See  further,  infra. 

*So,  there  may  be  an  apportionment  in  case  of  a  surrender,  as,  if  ^^,  -. 
a  man  make  a  lease  for  life  or  years,  and  the  lessee  surrenders  part  L  -^ 
to  the  lessor  ;(m)  sed  secus,  where  lessor  takes  a  surrender.(t')(2) 

So,  although  as  a  rule,  if  the  grantee  of  a  rent-charge  purchase  parcel  of 
the  land  out  of  which  it  issues,  the  whole  rent  is  extinct, (.r)  yet  if  the 
grantor  grant  that  he  may  distrain  for  the  same  rent  in  the  residue  of  the 
land,  this  amounts  to  a  new  grant, (i/)  and  the  same  rent  shall  be  taken  for 
the  like  rent  or  the  same  in  quantity. 

(l)  1  Inst.  14«  b.  (Hi)  lb. 

(n)  Id.     See  also  Dy.  5,  a ;  Moor,  pi.  255 ;  13  Co.  58. 

(o)  Vochcll  V.  Doncastell,  Moor.  891. 

(p)  Hunt  V,  Cope,  Cowp.  242.     See  also  Roper  v.  Lloyd,  T.  Jo.  148. 

(?)  Jew  V.  Tirkwcll,  3  Clinn.  Rep.  12 ;  S.  C,  1  Chan.  Ca.  31. 

(r)  Dorrell  v.  Andrews,  Hob.  190  ;  Hodgkins  v.  Robson,  1  Vent.  277  ;  Timbrel]  t. 
Bullock.  Sty.  446.  (s)  1  lost.  148,  b. 

(/)  Hods^kins  v.  Robson,  1  Vent.  277 ;  S.  C,  nom.  Hodgson  v.  Thornborougb,  2  Lev, 
143  ;  PoUexf.  141.  („)  1  Inst.  148.  a. 

(y)  See  infra,  §  213.  (x)  See  ante,  §  208.  (y)  1  Inst.  148,  a. 


(1)  1  Ante,  205,  n.  1. 

(2)  And  the  right  to  distrain  cannot  exist  after  such  surrender  even  if  all  powers  of  tlie 
landlord  be  reserved  by  express  agreement;  for  the  relation  is  at  an  end.  Bain  v.  Clark, 
10  Johns.  424. 


163 _  crabb's  law  of   real  propertv. 

b.  Apportionment  admitted  or  othertvise. 

212.  As  to  the  cases  where  apportionment  is  not  admitted,  except  under 
special  circumstances,  distinction  has,  in  the  first  place,  been  taken  between 
the  grant  of  a  rent,  and  the  reservation  of  a  rent ;  for  if  a  man  be  seised  of 
two  acres  of  land,  of  one  in  fee-simple,  and  of  another  in  tail,  and  by  his 
deed  grant  a  rent  out  of  both  in  fee,  in  tail,  or  for  life,  &c.,  and  dies,  the  land 
entailed  is  discharged,  and  the  land  in  fee-simple  remains  charged  with  the 
whole  rent,  for  against  his  own  grant  he  shall  not  take  advantage  of  the 
weakness  of  his  estate  in  part.  But  if  he  makes  a  gift  in  tail,  or  a  lease  for 
life  or  for  years  of  both  acres,  reserving  a  rent,  the  donor  or  lessor  dies,  the 
issue  in  tail  avoids  the  gift  or  lease,  the  rent  shall  be  apportioned,  for  seeing 
the  rent  is  reserved  out  of  and  for  the  whole  land,  it  is  reason  that  when 
part  is  evicted  by  an  elder  title,  the  donee  or  lessee  should  not  be  charged 
with  the  whole  rent,  but  that  it  should  be  apportioned  rateably  according 
to  the  value  of  the  land.(2-)(l) 

213.  Another  distinction  is  between  the  cases  where  it  is  the  act  of  the 
party,  the  act  of  law,  or  the  act  of  God. 

Where  it  is  the  act  of  the  party,  as  a  rule,  there  shall  be  no  apportion- 
j,  .  -,  ment  contrary  to  the  contract  of  the  parties,  *and  there  shall  be  no 
L  -^  extinguishment  or  suspension  of  rent  where  the  whole  is  done  by 
agreement,  but  where  the  lessor  enters  injuriously  and  contrary  to  the  will 
of  the  lessee,  then  there  may  be  a  suspension  of  the  rent  in  part  ;(«)(2)  so, 
if  two  joint-tenants  or  co-parceners  be  or;  a  seignory  and  one  of  them  dis- 
seise the  tenant  of  the  land,  the  other  joint-tenant  or  co-parcener  shall  dis- 
train for  his  or  her  moiety, (6)  for  one  co-parcener  shall  not  be  prejudiced 
by  the  tortious  act  of  the  other  ;(c)  so,  likewise,  a  seignory  may  be  suspended 
by  the  act  of  a  stranger;  so,  if  a  man  grant  a  rent-charge  out  of  two  acres, 
and  after  the  grantee  recovers  one  of  the  acres  against  the  grantor  by  a  title 
paramount,  the  M'hole  rent  shall  issue  out  of  the  other  acre,  but  if  the 
recovery  be  by  a  feint  title  by  covin,  then  the  rent  is  extinct  for  the  whole, 
because  he  claims  under  the  grant  ;(rf)  but  a  rent-charge  is  not  always  wholly 
extinct  where  the  grantee  claims  from  or  under  the  grantor.(f)  So,  although, 
if  a  grantee  of  a  rent-charge  purchase  parcel  of  the  land,  llic  whole  rent- 
charge  is  extinct,  yet  he  may  release  to  the  tenant  a  part  of  the  rent  and 
retain  part,  for  in  this  case  he  deals  only  with  that  which  is  his  own,  that  is, 
the  rent,  and  not  with  the  land,  as  in  case  of  purchase  of  part.(/)  So,  if  a 
lease  be  of  three  acres  reserving  a  rent  upon  condition,  and  the  reversion 
is  granted  of  two  acres,  the  rent  shall  be  apportioned  by  the  act  of  the 
parties  ;  but  the  condition  is  destroyed,  because  it  is  entire,  and  against  com- 
mon right. (^) 

214.  There  are  several  cases  where  a  rent  shall  be  apportioned  by  act  of 

(z)  Id.  148  b.  (a)  Hod<r)^ins  v,  Robson,  sup. 

(h)  1  Inst.  148.  b.         (r)  Asconjrli's  case,  !i  Co.  13.5,  b.         (rf)  Doct.  &  Stud.  1.  2,c.  17. 

(e)  See  ante,  §  210,         (/)  1  Inst.  148.  a.;  1  Roll.  Abr.  235.         (g)  1  Inst.  215.  a.       . 

(1)  This  distinction  was  recognised  in  Franciscus  v.  Rcigart,  4  W.  116,  before  it  had 
been  decided  tliat  ground-rents  are  rents  service. 

(2)  Ante  204-5,  n.  X. 


APPORTIONMENT    OF    RENT.  163 

the  lavv,(l)  where  it  cannot  be  apportioned  by  the  act  of  the  party,  as,  in  the 
first  place,  where  tlie  grantee  of  a  rent-charge  purchases  parcel  of  the  land 
out  of  which  the  rent  issues,  this  being  an  act  of  the  party,  the  rTOIQ"! 
*whole  is  extinguished  ;(/i)  but  if  this  parcel  descends  to  the  son  '- 
of  the  purchaser,  the  rent-charge  shall  be  apportioned,  because  it  comes  to 
him  by  course  of  lavv.(j)  So,  on  the  same  principle,  if  a  man  has  issue  two 
daughters,  and  grant  a  rent-charge  out  of  his  land  to  one  of  them,  the  rent 
shall  be  apportioned. (A-)  So,  where  one  leases  one  acre  of  borough  English 
and  another  of  gavelkind  tenure,  by  one  entire  rent,  and  having  issue  two 
sons,  dies,  the  rent  shall  be  apportioned  according  to  the  course  of  descent. (/) 
So,  where  the  reversion  devolves  upon  different  classes  of  representatives  of 
the  lessor,  as  where  one  seised  in  fee  of  Black  Acre,  and  lessee  for  tw-enty 
years  of  White  Acre,  leases  both  by  one  demise  for  ten  years,  rendering  an 
entire  rent,  and  dies,  whereupon  the  reversion  of  Black  Acre  descends  upon 
the  heir,  and  that  of  White  Acre  goes  to  the  executor,  the  rent  shall  be 
apportioned  according  to  the  reversion. (m) 

So,  where  a  common  man  is  a  conusee  in  a  statute  merchant  or  recog- 
nisance, and  purchases  parcel  of  the  land,  the  whole  rent  is  extinct,  but  it 
is  otherwise  in  the  case  of  the  Q,ueen,  for  if  she  purchases  parcel,  she  shall 
have  execution  of  the  other  lands  which  are  in  the  hands  of  others. («) 

So,  again,  a  rent  reserved  upon  a  lease  for  years  shall  not  be  apportioned 
by  the  act  of  the  lessor,  but  otherwise  by  act  of  law,  as  where  a  tenant  makes 
a  feoffment  in  fee  of  part  of  the  land,  and  the  lessor  enters. (o) 

But,  in  respect  of  the  realty  only  rent  is  apportionable,  for  the  personalty 
shall  not  be  divided  by  act  of  law;  therefore  if  execution  be  sued  of  body 
and  lands  upon  a  statute  merchant  or  staple,  and  after  the  inheritance  of 
part  of  those  lands  descend  to  the  conusee,  all  the  execution  is  avoided,  for 
the  duty  is  personal  and  cannot  be  divided  by  act  of  law;(/))  *so,  r-*220l 
where  there  is  a  lease  of  land  and  a  flock  of  sheep,  and  after,  upon  L 
a  recognisance  made  by  the  lessor,  the  land  is  evicted,  it  was  held  that  there 
should  be  no  apportionment  of  the  rent,  and  that  the  lessee  should  hold  the 
sheep  without  any  allowance  ;(</)  so,  where  a  man  leases  land  of  which  he 
is  seised  in  fee,  and  other  land  of  which  he  is  tenant  for  life  with  a  power 
of  leasing,  and  the  lease  is  not  well  executed  according  to  the  power,  it  was 
held,  that  the  lease  was  good  after  the  death  of  the  lessor  for  the  lands  in 
fee,  though  not  for  the  other  lands,  for  the  rent  shall  be  apportioned  ;(r) 
so,  if  A.  seised  of  one  acre  in  fee  and  possessed  of  another  for  years,  makes 
a  lease  of  both,  reserving  one  entire  rent,  and  dies,  the  rent  shall  be  appor- 
tioned with  the  reversion,  and  the  heir  and  executor  shall  have  his  propof- 

(h)  See  ante,  §  208.  (j)  Litt.  s.  224.  (fr)  1  Inst.  149.  b. 

(/)  Rushden's  case,  Dy.  4  b;  Ewer  v-  Movie,  Cro.  El.  771. 

in,)  Moody  v.  Garnon;  1  Roll.  Abr.  2.37,  (D.  5  ;)  S.  C,  3  Bulstr.  153. 

(rt)  Sav.  69,  pi.  143.  (n)  Wiseman  v,  Warringer,  2  Leon.  252 ;  S.  C,  Godb.  95. 

{p)  I  Inst.  150.  a.;  see  also  2  Vent.  327. 

(9)  Elliot's  case,  Dy.  212  b,  inarff.  pi.  38;  see  also  Read  v.  Lawrence,  Dy.  212;  also 
Bro.,  Apportionment,  pi.  24,  citing  7  H.  7,  4,  5. 

(r)  Doe  V.  Meyler,  2  M.  &  S.  276,  overruling  Reea  v.  Phillip,  1  Wightw.  69,  and  reccg 
nising  Stevenson  v.  Lambard,  2  East,  575. 


(11  As  if  part  of  the  premises  subject  to  rent  service  be  taken  for  a  public  street,  Cuthbert 
V.  Kuhn,  3  Whart.  357,  the  owner  of  the  rent  receives  part  of  the  compensation. 


164  crabb's    law    of    real    property. 

tion  ;(s\  so,  if  a  husband  leases  for  years,  reserving  rent,  and  dies,  the  wife 
recovers  a  third  part  of  the  reversion,  she  shall  have  the  same  proportion  of 
the  rent,  for  in  all  these  cases  the  law  distributes  the  rent  as  it  disposes  of 
the  reversion. (s)  See  further,  as  to  the  discharge  of  the  tenant  in  case  of 
eviction,  ante,  §§  205,  206. 

215.  There  are  several  other  cases  where  by  act  of  law  a  rent  is  appor- 
tionable,  which  would  not  otherwise  be  so,  as  if  a  moiety  of  a  reversion  be 
extended  by  elegit,  the  rent  shall  be  apportioned,  and  the  lessor  shall  still 
enjoy  half  the  rent  as  incident  to  the  reversion  that  remains  in  him.(/)(l) 

216.  As  to  apportionment  by  the  act  of  God,  if  a  man  leases  land  for 
life  or  years  rendering  rent,  and  after  part  of  the  land  is  surrounded  by  water, 

-,  this  will  not  make  any  *apportionment  of  the  rent,  because  the  soil 
L  J  remains  and  may  be  regained  again  ;  but  if  part  of  the  land  be 
covered  with  the  sea  this  will  make  an  apportionment,  as  by  ordinary  intend- 
ment, there  is  no  probability  of  regaining  it;(?<)  so,  if  land  demised  be  burnt 
by  wild  fire,  there  shall  be  no  apportionment,  because  the  land  remains  and 
cannot  be  rendered  altogether  unprofitable. (m)  >• 

217.  There  are  some  few  other  cases  where  the  law  of  apportionment 
does  not  apply,  or  only  under  certain  restrictions,  as  where  the  rent-service 
is  something  whole  and  indivisible,  as  a  house,  &c,,and  the  lessor  purchases 
part  of  the  land,  such  rent  is  wholly  extinct,  because  it  cannot  be  severed  or 
apportioned  ;(t')  so,  where  a  man  has  common  of  pasture  sans  nomhre  in 
twenty  acres  of  land,  and  ten  of  those  acres  descend  to  A.,  the  common  sans 
nombre  being  entire  and  uncertain  cannot  be  apportioned,  sed  secus  if  it  had 
been  a  common  certain  as  for  ten  beasts  ;(.r)  so,  if  three  joint-tenants  hold 
by  an  entire  yearly  rent,  as  of  a  horse,  &c.,  and  the  tenants  cease  for  two 
years,  and  the  lord  recovers  two  parts  of  the  land  granted  against  two  of 
them,  and  the  third  saves  his  part  by  tender  of  the  rent ;  although  the  lord 
comes  to  the  two  parts  by  lawful  recovery,  yet  the  entire  rent  shall  be 
extinct ;(?/)  but  if  an  entire  service  be  pro  bono  publico,  as  to  repair  a  bridge 
or  a  way  and  the  like,  then  although  the  lessor  purchases  part,  yet  the  ser- 
vice remains,  (y) 

218.  Again,  there  is  a  diversity  between  a  rent  in  gross  and  a  rent  inci- 
dent to  the  reversion,  concerning  the  apportionment  thereof,  as  if  a  man 
enfeoff  B.  of  one  acre  in  fee  upon  condition,  and  B.  being  seised  of  another 
acre  in  fee  grants  a  rent  out  of  both  acres  to  the  feoffor,  who  enters  into  the 
one  acre  for  the  condition  broken,  the  whole  rent  shall  issue  out  of  the  other 

-,  acre,  because  his  title  is  paramount  *the  grant;  but  if  a  man  make 
t         J  a  lease  for  life  of  Black  Acre  and  White  Acre,  reserving  two  shil- 

(s)  1  Roll.  Abr.  237.  (0  Campbell's  case,  1  Roll.  Abr.  237.         (m)  1  Roll.  Ab.  236. 

(«)  Litt.  s.  2-22.  (x)  1  Inst.  14J.  a. 

(y)  lb.;  see  also  Bruerton's  case,  6  Co.  1,  2. 


(1")  This  cannot  be  separated  from  the  reversion  by  an  execution.    Montague  v.  Gay, 
17  Mass.  439. 


APPORTIONMENT    IN    RESPECT    OF    PART     OF    TIME.       165 

lings  rent,  upon  condition  that  if  the  lessee  does  such  an  act  that  then  he 
shall  have  fee  in  Black  Acre,  the  lessee  performs  the  condition,  yet,  although 
by  relation  he  has  the  fee-simple  ab  initio,  shall  the  rent  be  apportioned,  for 
the  reversion  of  one  acre  whereunto  the  rent  was  incident  is  gone  from  the 
lessor,  (z) 

c.  Manner  of  making  Jlpportionment. 

219.  The  making  an  apportionment  is  properly  the  business  of  a  jury, 
who  upon  the  evidence  ofiered  are  to  judge  of  the  value  of  the  land  pur- 
chased by  the  lessor,  or  aliened  by  the  tenant  ;(o)(l)  but  if  the  lessee  re- 
denaise  part  to  the  lessor  reserving  a  rent,  there  shall  be  no  apportionment, 
for  the  parties  by  the  reservation  have  ascertained  what  rent  shall  be  allowed 


for 


assign 


that  part;(a)  so,  if  part  be  assigned  by  the  lessee  to  a  stranger,  who 
n-ns  it  to  the  lessor,  there  shall  be  no  apportionment,  for  the  lessor  comes 


under  the  benefit  of  the  stranger's  contract. (a) 

An  apportionment  may  be  made  upon  a  plea  of  nil  debit  pleaded  by 
the  tenant,  because  when  issue  is  joined  on  such  plea,  it  is  the  business  of 
the  jury  tc^determine  whether  anything  and  how  much  is  due  ;(«)  but  the 
Tent  cannot  be  apportioned  upon  a  demurrer  because  the  judges  only  deter- 
mine what  is  the  law  in  the  case,  but  the  value  of  the  land  never  comes  in 
question  ;(o)  and  where  the  apportionment  is  made  between  the  landlord 
and  the  purchaser  of  part  of  the  reversion  without  the  privity  of  the  tenant, 
he  is  not  bound  by  it,  and  may  dispute  its  propriety  ;(6)  and  consequently 
the  purchaser  would,  by  the  conveyance  of  the  vendor  without  the  concur- 
rence of  the  lessee,  not  acquire  the  same  rights  against  the  lessee,  as  he 
would  have  acquired  if  the  annual  rent  had  been  legally  apportioned  by  the 
*jury,(c)  and  the  defendant  may  in  his  pleading  set  forth  the  value  p«223l 
of  the  land  and  to  what  the  apportionment  shall  be.(^/)  '- 

II.  ^ji?ottionmcnt  m  respect  cf  i3art  of  Eimt. 

220.  At  common  law  there  should  never  be  an  apportionment  in  respect 
of  part  of  the  rent  as  there  should  have  been  upon  an  eviction  of  part  of  the 
land;(e)(2)  therefore  if  a  tenant  for  life  died  before  the  day  on  which  the 
rent  became  due,  his  executors  could  not  claim  an  apportionment  of  the 
rent ;  nor  could  the  remainderman  or  reversioner  claim  that  part  of  it  which 
accrued  during  the  life  of  the  tenant  for  life,  so  that  the  tenant  paid 
nothing.(/)    The  11  G.  2,  c.  19,  s.  15,  has  remedied  this  defect  in  the  law 

(z)  1  Inst.  148,  b.  {a)  Hodgkins  v.  Robson,  1  Vent.  276. 

(//)  Bliss  V.  Collin-?,  5  B.  &.  A.  876.>  (r)  Ih.     See  also  S.  C,  4  Madd.  229. 

Id)  Hndgkins  v.  Robson,  sup.  (e)  10  Co.  123. 

(/)  Jenner  v.  Morgan,  1  P.  Wms.  392. 


(1)  M'EIderrv  v.  Flannagan,  1  Harr.  &  Gill,  308.     Cathbert  v.  Kulin,  3  Whart.  3GG. 

(2)  Bank  of  Pcnna.  v.  Wii^e,  3  W.  394.  And  tbe  reason  is,  tbat  no  part  becomes  due 
until  the  day  of  payment;  otherv/ise  of  amounts  growing  due  fions  day  to  day,  though 
payable  for  convenience  on  a  piirticular  day.  As  a  charge  reserved  by  a  widow  in  lieu 
of  dower.  Sweigart  v.  Berks,  8  S.  &,  R.  306.  Or  an  annuity  accepted  by  lier  in  lieu  of 
dower.  Gheen  v.  Osborn,  17  S.  &  R.  171.  By  act  of  1834,  §  8,  the  stat.  of  11  Geo.  2,  has 
been  re-enacted  in  substance  as  regards  rents,  and  it  is  said  to  have  been  generally  adopted 
i\i  this  country,  3  Kent's  Com.  470. 

»7  Eng.  Com.  Law  Reps.  286. 


166 


crabb's   law    of    real   property. 


by  giving  the  rent  due  for  the  portion  of  the  time  that  has  elapsed  of  the 
quarter  to  the  executors  and  administrators.  In  order  that  the  rent  may  be 
apporlionable  under  the  statute,  the  demise  must  determine  by  the  death  of 
tenant  for  Hfe.  If  the  lease  be  such  as  to  bind  the  remainderman,  then  the 
whole  rent  goes  to  him,  and  there  is  no  apportionment.(g-)  Before  the  4  & 
5  W.  4,  c,  22,  it  was  doubtful  whether  the  first  statute  extended  to  tenants 
pur  autre  vie,  or  tenants  in  tail  ;(/t)  therefore,  when  an  incumbent  had 
leased  the  glebe  and  tithes  of  his  living,  and  the  lease  expired  by  his  death, 
the  tenant  having  paid  a  whole  year's  rent  to  the  successor,  it  was  held  that  the 
executors  of  the  last  incumbent  was  entitled  to  an  apportionment  of  the 
rent  up  to  the  time  of  his  death  ;(i)  and  time  has  been  held  to  be  the  mea- 
sure of  the  apportionment  in  respect  to  tithes,  as  in  respect  to  the  profits  of 

the  land.(A') 

*In  the  case  of  dividends  of  stock,  it  was  held  that  the  remainderman, 
[*224]  ^^^^j  ^^^  ^[^^  executors,  was  entitled  to  a  proportional  share  thereof  to 
the  time  of  the  death  of  tenant. (/)(1) 


VII.  Beco'ofri)  of  J^cnt. 

§221.  Means  of  recovering  Rent. 


1.  Bcmrtii?  I)i)  Distress. 
222.  In  what  Cases. 


§  293.  Donor  or  Lessor. 

224.  BaililFor  Agent. 

225.  Receiver. 
22(i.  Co-p:ircener. 

227.  Joint-Tenants. 

228.  Tenants  in  C-onimon. 

229.  Tenants  in  Tail. 


a.  Who  may  distrain. 


§  230.  Ilnsband  in  right  of  Wife. 
231.  Mortfragee. 
Annuitant. 
532.  Guardians  and  Committees. 

233.  Exeeutors. 

234.  Corporations. 
The  Crown. 


b.  What  Things  may  be  destrained,  or  otherwise. 


235.  General  Rule. 
Exceptions. 
Things  of  no  value. 
Dags,  &  c. 

Deer. 

236.  Tilings  fixed  to  the   Freehold  not 

distrainable. 

237.  Cattle,  wlien  distrainable. 

Cattle  within  View  of  the  Landlord. 


Cattle  agisting. 

238.  Beasts  of  the  Plough  not  distrain- 

able. 

239.  Nor  Goods  delivered  to  Tradesmen. 
Goods  left  at  Inns. 

240.  Nor  Goods   in   the  Custody  of  the 

Law. 

241.  Nor  Money  in  a  Bag. 

Nor  Crops  of  sown  Corn,  when. 


{s)  Ex  parte  Smyth,  1  Swanst.  337. 

(/i)  See  Paget  v.  Gee,  Amb.  1^8 ;  Wliitfield  v.  Pindcr,  cited  in  Vernon  v.  Vernon,  2  B. 
C.  C.  662  ;  also  Dig.  P.  ii.  lit.  Apnortionniciit. 

(i)  Hawkins  v.  Kelly,  8  Ves.  308. 

(A-)  Aynsley  v.  Wordsworth,  2  V.  A:  B.  331,  overruling  Williams  v.  Powell,  10  East,  20b. 

(/)  Sec  Pearly  v.  Smith,  3  Atk.  260.  Slierrard  v.  Sherrard,  Id.  502  ;  Wilson  v.  Harman, 
2  Ves.  672. 


(1)  Swicgart  v.  Berks,  8  S.  &  R.  306. 


RECOVERY   OF   RENT.  167 

c.   Time  of  making  distress. 
242.  Not  at  Night.  |      242.  On  what  Days  of  the  Year. 

d.  Place  where  Distress  may  be  made,  or  otherwise. 


243.  Upon  the  Land. 
214.  Distraining  out  of  the  Fee. 
Fraudulent  Removal. 


245.  Distraining  on  any  Part  of  the  Land. 
Breaking  in  to  Distrain. 
Several  Distresses. 


*e.  Manner  of  making  a  Distress,  and  the  Proceedings  thereon.  [*225] 


246.  Acts  of  the  Landlord  and  his  Agent. 
Liability  of  the  Landlord. 

247.  Appointment  of  a  Bailiff,  cVc. 

248.  Manner  of  disposing  of  the  Distress. 


249.  Sale  of  the  Distresses. 

250.  User  of  the  Distress. 
Impounding  Animals. 


IL  3Acmrti>  1)1}  Hntvs. 

25L  Necessity  of  Demand.  |    251.  When  Demand  dispensed  with. 

252.  Nomine  Pcence. 

IIL  lannrtii'  b"  Slctfon. 


253.  Action  of  Debt  at  Common  Law. 
By  Statute. 

254.  Executors  and  Administrators. 
Of  Tenant  for  Life. 

255.  Holdinjr  over. 


255.  Double  Value  under  4  G.  2,  c.  23. 
256    Double  Rent  under  11  G.  2,  c.  19. 

257.  Action  for  Use  and  Occupation. 
Where  it  lies. 

258.  Where  it  does  not  lie. 


§  221.  The  means  for  recovering  rent  are — 1.  The  remedy  by  distress  ;(1) 
2.  By  entry  ;  3.  By  action  or  suit ;  4.  By  statute. 

I.  iicmttrj;  b«  Bfstvrss. 

222.  The  remedy  by  distress  is  by  the  common  law  incident  to  a  rent  ser- 
vice, but  in  case  of  a  rent-charge,  it  must  expressly  be  provided  for  by  the 
deed.(m)  Under  this  head  may  be  considered — 1.  Who  may  distrain;  2. 
What  may  be  distrained  ;  3.  Manner  of  making  a  distress  and  proceedings 
thereon  ;  4.  Place  where  distress  is  to  be  made.  See  further,  as  to  distress, 
post,  Injuries  to  Things  real  and  their  Remedies. 

a.   fVho  may  distrain. 

223.  If  a  man  seised  in  fee  makes  a  gift  in  tail,  or  a  lease  for  life  or  years, 
or  at  will,  saving  the  reversion  to  himse]f,(2)  with  a  reservation  of  rent  or 
other  services,  the  law  gives  *the  donor  or  lessor,  without  any  r-=i:225"l 
express   provision,  remedy  for  such  rent  or  services, (>i)  and  this  L 

my  Lord  Coke  calls  a  rent  distrainable  of  common  right  ;(o)  but  if  the  donor 

(m)  See  ante  §§  151, 152.  (n)  Lit.  s.  214. 

(o)  1  List.  142,  a.,  citing  H.  4,  15  ;  see  also  Bro.  Distress,  78;  Moor,  36  ;  Cro.  El.  637. 


(1)  This  remedy  generally  exists  in  the  U.  S.,  though  there  are  some  exceptions.    3 
Kent's  ("om.  472. 

(2)  Ante,  170,  n.  1 ;  Prcscott  v.  Deforest,  16  Johns.  159. 


168  CRABb's  LAW  OF  REAL  PROPERTY. 

or  lessor  do  not  reserve  the  reversion,  he  cannot  distrain  of  common  right ; 
therefore  if  a  lessee  for  years  assigns  his  term,  reserving  to  himself  a  rent, 
he  cannot  enforce  the  payment  of  such  rent  by  distress, (1)  because  a  rent 
so  reserved  was  not  distrainable  for  at  common  law,  and  not  beinsr  a  rent- 
seek,  it  did  not  fall  within  the  4  G.  2,  c.  28,  s.  5,  which  gives  such  remedy 
for  a  rent-seek. (^;)  So,  if  termor  lease  for  remainder  of  term,{q^  and  if  a  man 
seised  in  lee  or  for  life  of  a  rent-charge,  after  arrearages  incur,  grant  over 
the  rent  to  another,  he  cannot  distrain  for  the  arrearages,  because  they  are 
by  the  grant  divided  from  the  freehold  •,{r\  but  this  is  to  be  understood  with 
some  exceptions,  as  in  case  of  rent  granted  by  one  coparcener  to  another 
for  equality  of  partition,  the  grantee  may  distrain  of  common  right,  though 
she  has  no  reversion, (s)  lest  she  should  be  without  remedy  ;(^)  and  so  in  the 
case  of  a  donor  ;(<)  but  a  party  may  reserve  to  himself  a  power  of  distrain- 
ing,(M)  and  a  tenant  from  year  to  year,  underletting  from  year  to  year,  has  a 
sufficient  reversion  entitling  him  to  distrain. (x) 

224.  A  bailiff  who  distrains  must  show  in  whose  right  he  does  so.fy) 
An  authority  to  tenants  to  pay  rent  to  J.  S.,  whose  receipt  shall  be  their 
discharge,  does  not  entitle  him  to  distrain,  although  he  receives  the  rent  for 
his  own  benefit. (z) 

r*227~l  *225.  After  the  attornment  of  the  tenants  a  receiver  may  distrain 
L  -"in  his  own  name  and  on  his  own  authority,  without  any  special 
leave  of  the  court ;  but  before  attornment  he  must  distrain  in  the  name  of 
the  person  having  the  legal  estate ;(«)  and  if  there  be  any  doubt  as  to  who 
has  the  legal  estate,  the  receiver  must  in  that  case  make  application  to  the 
court  for  an  order  to  distrain. (6)  So,  if  the  owner  be  in  possession,  the 
receiver  cannot  distrain,  but  must  apply  to  the  court  for  an  order  directing 
the  owner  to  give  up  possession  to  the  receiver  ;(f)  so,  if  rent  be  in  arrear 
for  more  than  a  year,  a  receiver  cannot  distrain  without  an  order  of  the 
court. (rf) 

226.  Coparceners  are  considered  in  law  but  as  one  heir  ;(e)  therefore, 
they,  as  a  rule,  must  join  in  making  a  distress  ;(y)  and  one  of  two  coparce- 
ners cannot  make  an  avowry  for  a  moiety  before  partition,  although  they 
have  several  inheritances  ;(/)  after  partition  they  or  their  grantees  may  avow 
severally  ;(^g)  so,  before  partition,  one  of  several  co-heirs  may  distrain   for 

(/)) V.  Cooper,  2  Wils.  375  ;  recognised  in  Parmentcr  v.  Webber,  8  Taunt.  593  ;» 

S.  C,  2  J.  B.  Moore,  656. 

(q)  Preece  a.  Corrie,  3  Bing.  24 ;''  S.  C,  2  M.  «fc  P.  57  ;  recognised  in  Pascoe  v.  Pascoe, 
3  Bing.  N.  C.  905.c  (/■)  Ogncll's  case,  4  Co.  50 ;  S.  C,  cited  Vaugh.  40. 

(s)  Litt.  s.  262.  (0  1  Inst.  169,  b.  (m)  Id.  47,  a. 

(z)  Curtis  V.  Wheeler,  M.  &  M.  493;'  S.  C,  4  C.  &  P.  196.^ 

(y)  Bro.  Distress,  78.  (z)  Ward  v.  Slicw,  9  Bing.  608 ;f  S.  C,  2  M.  &  So.  756. 

{a)  Hughs  V.  Hugiis,  3  B.  C.  C.  85;  S.  C,  1  Vcs.  Jun.  161  ;  and  see  1  BaU  and 
Bca.  483.  (b)  Pitt  V.  Snowden,  3  Atli.  750. 

(c)  Griffiths  V.  Griffiths,  2  Vez.  400.         (d)  Brandon  v.  Brandon,  5  Madd.  473. 

(e)  1  Inst.  164,  a. 

(f)  Stedmxn  v.  Pago,  1  Salk.390;  S.C.  5  Mod.  141  ;  Comb  317;  S.  C.  nom.  Stcdman 
T.  Bates,  1  Ld.  Raym.  64.  («-)  Buttlcr  and  Baker's  case,  3  Co.  22,  b. 


(1)  Ege  V.  Ego,  5  W.  134. 
«4  Eng.  Com.  Law  Reps.  214.    i-lS  Id.  353.     ^32  id.  374.    <i22  Id.  367.    «19  Id.  340. 

f23  Id.  396. 


RECOVERY    OF     RENT.  169 

rent  due  to  herself  and  her  co-heirs,  without  an  express  authority  from  them 
so  to  do;  and  an  avowry  by  her  in  her  own  right,  and  a  cognizance  as  the 
bailiflof  the  others,  is  sufficient,  without  averring  any  authority  .from  them 
to  distrain  ;[h\  and  there  is  no  difference  in  this  respect  between  coparceners 
at  common  law,  and  parceners  by  custom,  as  parceners  in  gavelkind. (A) 

227.  One  joint  tenant  may  distrain  alone,  but  he  cannot  avow  for  the 
whole  as  in  his  own  right  ;  he  must  avow  particularly  *in  his  own  (-^ono-i 
right,  and  make  conusance  as  bailiff  of  the  others  ;(«)  but  as  in  the  L  -' 
case  of  coparceners,  he  is  not  obliged  to  have  any  express  authority,  and  if 
the  others  merely  decline  to  act,  he  may  proceed  to  distrain  for  rent  due  to 
all.(A-) 

228.  Tenants  in  common  must  sever  in  avowry,(l)  "because  it  goes  to 
the  realty,  and  therefore  if  three  tenants  in  common  distrain  for  thirty  beasts, 
one  of  them  must  avow  for  ten,  the  other  for  ten,  and  the  third  for  ten  ;(/)" 
and  payment  of  the  rent  to  one  tenant  is  not  payment  to  the  other,  there- 
fore when  a  terre-tenant  after  notice  paid  the  rent  to  one,  it  was  held  that  the 
other  might  distrain  for  his  share,(?n)  and  they  may  make  several  distresses; 
therefore  where  land  was  demised  by  four  persons  (whose  title  did  not 
appear)  at  one  entire  rent,  and  one  of  them  distrained  for  his  share,  the  dis- 
tress was  held  to  be  regular,  for  whatever  might  have  been  the  interest  of 
the  landlord  as  between  themselves,  as  between  them  and  the  terre-tenant 
they  were  tenants  in  common,  and  entitled  each  to  a  separate  distress  ;(»)  so, 
in  an  early  case  it  had  been  decided  that  one  tenant  in  common  might  take 
a  distress,  without  his  companion,  and  avow  solely. (o)  But  as  tenants  in 
common  have  a  joint  action  for  rent,  it  being  in  the  personalty  and  not  in  the 
realty, (;j)  it  has  therefore  been  held  that  the  survivor  of  tv/o  tenants  in  com- 
mon may  distrain  for  the  whole  of  the  rent,  although  the  reservation  be  to  the 
lessors  according  to  their  respective  interests. ((7) 


9.  By  the  .32  H.  8,  c.  28,  tenants  in  tail  are  enabled  to  make  p*229"l 
so  as  to  bind  their  issue,  and  although  not  made  conformable  L 


*229. 
leases 

to  the  statute,  yet  such  lease  is  good  as  against  himself,  and  therefore  as  a 
reversioner  he  may  distrain  even  at  common  law  for  the  rent  reserved 
thereby.  (/•) 

(/,)  Leigh  V.  Shcppai-d,  5  J.  B.  Moore,  297 ;  S.  C,  2  B.  &  B.  465.?  ,„,,,.,, 

(0  Pullen  V.  Palmer,  5  Mod.  12  ;  S.  C,  Carth.  did  ;  see  also  15  H.  7,  1  /  ;  12  Mod.  77. 
(A)  Robinson  v.  HotFman,  4  Ding.  662; '  S.  C,  1  M.  &  P.  474  ;  3  C.  &,  P.  234. 
(/)  Per  Holt,  C.  J.,  I'ullcti  V.  Palmer,  3  Salk.  207. 

(in)  Harrison  V.  Barnbv,  5  T.  Iv.  246.  ,,.,„,  t.    «    t>    1 1  .: 

(n)  Whitlcv  V.  Roberts,  1  M'Clel.  &  Y.  107;  see  also  Doe  v.  Mitchell,  1  «.  &  B.  11  ,' 
S.  C.  3  J.  B.  Moore,  229  ;  Powis  v.  Smyth,  5  B.  &  A.  850  ;<  S.  C,  1  D.  &  K.  idO. 
(0)  Willes  V.  Fletcher,  Cro.  El.  530. 
(/;)  Litt.ss.  315,  316. 

{,1)  Wallace  v.  M'Laren,  1  Man.  &  Ryl.  516.i 
(r)  Ex  parte  Smyth,  1  Swanst.  346,  n. 


(1)  Unless  there  be  a  joint  lease,  in  which  case  they  may  join.   Jones  v.  Guidrim,  3 
W.  &  S.  534. 

86  Eng.  Com.  Law  Reps.  203.    H5  Id.  73.   '5  Id.  4.    ''7  Id.  279.    a7  Id,  273. 


170  crabb's  law    of   real  property. 

230.  At  common  law  if  a  husband  seised  in  fee,  or  in  tail  in  right  of  his 
'wife  of  a  rent-charge,  did  not  recover  during  his  wife's  life  arrears  which 
became  due  previously  to  their  marriage,  he  could  not  after  her  death  compel 
payment  of  them  ;  but  now,  by  the  32  H.  8,  c.  37,  he  or  his  personal  repre- 
sentatives may  distrain  for  the  same  ;(s)  and  it  seems  that  copyhold  lands 
charged  with  a  rent  are  within  the  provisions  of  the  act ;(/)  it  seems  how- 
ever that  leases  for  years  are  not  within  the  statute, (t<)  but  if  the  wife's 
term  be  demised  for  years,  the  reversion  is  then  in  the  husband,  and  he 
may  distrain. (.r) 

331.  A  mortgagee  after  giving  notice  of  the  mortgage  to  the  tenant  in 
possession,  is  entitled  to  rent  in  arrear  at  the  time  of  the  notice,  and  to  what 
accrues  due  afterwards,  and  may  distrain  for  the  same,  if  the  lease  under 
which  the  tenant  holds  have  been  made  before  the  mortgage ;(?/)  but  where 
the  lease  has  been  made  by  the  mortgagor  alone  after  the  mortgage,  then 
the  mortgagee  has  no  remedy  but  by  ejectment,  and  cannot  distrain  ;(^z\  and 
a  mere  recognition  by  the  mortgagee  of  the  tenant  in  possession  as  his  tenant 
will  not  enaijle  him  to  distrain.(«)(l) 
^  ^  *Where  an  annuity  is  granted  out  of  an  estate,  and  the  grantor, 
L  J  to  secure  the  payment,  vests  the  estate  in  trustees  for  a  term  to  the 
use  of  the  annuitant,  the  latter  may  distrain  for  the  arrears. (6) 

232.  As  a  guardian  may  make  leases  of  the  infant's  land  in  his  own 
name,  so  he  may  like  other  persons  distrain  in  his  own  name.(c)  Com- 
mittees of  lunatics,  like  receivers,  must  act  under  the  directions  of  the  Court 
of  Chancery.  See  Bradby  on  Distresses,  by  Serjeant  Adams,  63  ;  Shelford 
on  the  Law  of  Lun.  180. 

233.  At  common  law  the  personal  representatives  of  a  man  seised  of  a 
rent  in  fee-simple,  fee-tail,  or  for  life,  could  not  distrain  for  arrears  of  rent 

(s)  See  4  Co.  51  a, 

(«)  Appleton  V.  Dolly,  Yelv.  135;  but  sec  Gilb.  Ten.  187;  Bull.  N.  P.  57;  2  Watk. 
Cop.  182. 

(u)  Meriton  v.Gilbee,  8  Taunt.  159  ;>=>  S.  C,  2  J.  B.  Moore,  48;  Martin  v.  Burton,  B.  1 
&  B.  27y  ;  overruling  Powell  v.  Killick,  Bull.  N.  P.  57 ;  and  see  Prescott  v.  Boucher,  3 
B.  &.  Ad.  862  ;n  .Tones  v.  Jones,  Id.  067." 

(x)  Wade  v.  Marsh,  Latch.  211.  (y)  Moses  v.  Gallimore,  1  Douffl.  279.  ' 

(z)  Evans  v.  Elliott,  9  Ad.  &  E.  342.'     See  also  Pope  v.  Biggs,  9  B.  &  C.  245.P 

(tf)  Brown  v.  Stoney,  1  Man.  &  Gr.  1 1 7  ;t  S.  C,  1  Scott,  N.  S.,  9. 

(Jb)  Fairfax  v.  Gray,  2  Bl.  1326. 

(c)  Shopland  v.  Rydler,  Cro.  Jac.  55 ;  Bredell  v.  Constable,  Vaugh.  179. 

(1)  The  right  of  a  mortgagee  to  distrain,  is  recognised  very  generally  in  the  United 
States.  NcwcU  v.  Wright,  3  Mass.  152.  Soudcrs  v.  Vansyckle,  3  Halst.  313;  though 
in  Connecticut  the  tenants,  it  appears,  first  must  attorn.  Magill  v.  Hinsdale,  6  Conn.  469  ; 
Babcock  v.  Kennedy,  1  Verm.  457  ;  and  the  same  distinction  between  a  lease  made  before 
and  after  the  mortgage  is  recognised  on  the  ground  that  no  privity  exists.  M'Kercher  v. 
Hawley,  16  John.  292  ;  Souders  v.  Vansyckle,  3  Halst.  212  :  Price  v.  Sanderson,  1  Green. 
Ch.  Rep.  517.  But  even  then  if  the  tenant  consent,  to  avoid  an  eviction,  it  wil  Ibe  a  valid 
payment,  id. ;  and  Smith  v.  Shepherd,  15  Pick.  149,  and  Jones  v.  Clark,  20  John.  60.  But 
in  Pennsylvania  it  is  believed  this  doctrine  is  not  recognised;  Meyers  v.  White,  1  Raw. 
355  ;  for  until  entry  the  mortgagee  has  but  a  lien.     Rickert  v.  Madeira,  id.  325. 

"Eng.  Com.  Law  Reps.  iv.  57.    "Id.  xxiii.  197,  202.   "Id.  xxxvi.  159.    pJd.  xvii.  368. 

■ild.  xxxix.  372. 


RECOVERY     OF     RENT.  171 

Incurred  in  the  lifetime  of  a  testator  or  intestate,  but  this  power  was  given 
them  by  the  32  H.  8,  c.  37  ;  but  the  statute  applies  only  to  cases  where  the 
owner  of  the  rent,  if  he  had  lived,  nn'ijht  have  distrained,  and  therefore 
when  the  rent  was  in  arrcar,  and  the  owner  had  granted  away  his  interest 
before  his  death,  his  executor  was  held  to  have  no  remedy  for  such  arrear- 
ages.(r/)  If  a  man  made  a  lease  for  life  or  a  gift  in  tail  reserving  a  rent, 
this  was  a  rent-service  within  the  statute,  but  it  was  doubtful,  whether  if  a 
person,  seised  in  fee  of  lands,  made  a  lease  for  years,  reserving  rent,  his 
executor  or  administrator  could  not  under  this  statute  have  distrained  for 
arrears  of  rent  incurred  in  his  lifetime  ;  and  in  the  case  of  Prescolt  v. 
Boucher(f)  it  was  decided  in  the  negative,  but  by  the  3  &  4  W.  4,  c.  42,  s. 
37,  executors  and  administrators  are  authorised  in  such  cases  to  distrain. 
See  Dig.  p.  ii.  tit.  Executors  and  Administrators. 

234.  A  corporation  aggregate  cannot  distrain  in  their  "own  person  r^oqi-i 
but  by  their  bailiff,  and  this  it  seems  must  be  done  by  deed. (A  >-     '    -' 

The  queen  may  reserve  a  rent  out  of  a  franchise  or  matter  incorporeal  as 
well  as  out  of  lands,  and  may  distrain  for  it  on  any  other  lands  of  the  tenant 
not  subject  to  the  rent,  but  not  in  such  other  lands  of  the  tenant  as  are  let 
by  tenant,  or  extended  ;  and  by  the  22  C.  2,  c.  6,  the  grantee  of  a  farm 
rent  has  the  same  power  of  distress  as  the  queen  had.(g') 

b.  TFhat  Things  may  he  distrained,  or  othertvise. 

235.  As  a  rule,  all  the  moveable  chattels  of  a  tenant  may  be  distrained 
for  rent-arrear,(l)  but  to  this  rule  there  are  many  exceptions  and  on  various 
grounds,  yet  such  exceptions  are  fewer  now  than  formerly. 

First.  A  thin"-  to  be  distrainable  must  be  somethinof  in  Avhich  a  man  can 
have  a  valuable  property,  and  therefore  it  is  said  in  the  books  that  there  can 
be  no  distress  of  dogs,  deer,  conies,  and  all  other  animals  ferse  nahirae;  but 
this  rule  is  held  to  be  too  general,  for  as  to  dogs,  "it  is  clear  now  that  a  man 
may  have  a  valuable  property  in  a  dog;  trover  has  been  several  times 
brought  for  a  dog,  and  great  damages  have  been  recovered,"(/j)  and  the 
legislature  has  made  it  penal  to  steal  dogs.     See  Dig.  p.  i.  tit.  Larceny. 

As  to  deer  it  has  been  expressly  decided  that  when  kept  in  an  inclosed 
ground  for  the  purposes  of  sale  or  profit  they  may  be  distrained. (i) 

236.  In  the  next  place,  things  fixed  to  the  freehold,  as  doors,  windows, 

((/)  Ogncll's  case,  4  Co.  50  ;  1  Inst.  162,  a.  (p)  Sup. 

(/)  Cro.  El.  815;  Roll.  Abr.  514. 

(e)  Attorney-General  v.  Coventry  (Mayor),  1  P.  Wms.  306. 

(//)  Per  Willis,  C.  J.,  Davics  v.  Powell,  Willcs,  48;  see  also  Binstead  v.  Buck,  2  Bl, 
1117.  (i)  Davies  v.  Powell,  sup. 


(1)  Russell  V.  Doty,  4  Cow.  576  ;  Kessler  v.  M'Cofiachy,  1  Raw.  4.35  ;  or  a  nejrro  of  a 
stranger  accidentally  on  the  premises.  Bull  v.  Horlback,  1  Bay,  301.  But  if  the  tenant 
quit  possession,  and  sell  liis  goods  to  a  succeeding  tenant,  tlicy  cannot  be  distrained  for 
tlie  arrears  due  by  the  former  tenant.  Clifford  v.  Beams,  3  W.  246.  The  rule  of  the 
common  law  has  been  altered  in  Kentucky,  2  Dana,  213,  and  in  Virginia,  1  Lomax,  Dig-. 
551,  and  the  remedy  confined  to  the  goods  of  the  tenants. 


173        crabb's  law  of  real  property^ 

and  the  like,  are  not  distrainable  ;(1)  for  what  is  part  of  the  freehold  cannot 
be  severed  from  it  without  detriment  to  the  thing  itself  in  the  removal,  and 
^  -,  as  distresses  *were  considered  as  pledges,  which  were  to  be  restored 
L  -'to  the  owner  in  statu  quo,  such  things  once  removed,  could  not 
have  been  so  restored.  Besides,  what  is  fixed  to  the  freehold  is  part  of  the 
thing  demised,  and  the  nature  of  a  distress  was  not  to  resume  part  of  the 
thing  itself  for  the  rent,  but  only  the  inducta  and  illata  upon  the  soil  or 
house. (A;) 

On  this  principle  an  anvil  in  a  smith's  shop,  and  a  millstone  in  a  mill  are 
privileged  from  distress,  and  a  temporary  removal  of  the  anvil  out  of  the 
stock,  or  the  millstone  out  of  the  mill,  for  the  purpose  of  its  being  picked, 
does  not  destroy  the  privilege. (/)  So,  for  the  like  reason,  corn  growing  was 
before  the  11  G.  2,  c.  19  (see  Dig.  p.  ii.  tit.  Distress)  not  distrainable,  and 
so  trees,  shrubs,  and  plants  growing  in  a  nursery  ground  cannot  be  dis- 
trained ;(m)  in  this  latter  case  the  exemption  is  in  favour  of  trade,  see  infra, 
§  239. 

237.  Cattle  on  a  common  were  not  distrainable  before  the  11  G.  2,  c. 
19  ;(«)  but  cattle  of  a  stranger  trespassing  on  the  land  of  a  tenant  may  be 
distrained,  although  the  owner  make  fresh  suit  and  the  cattle  be  not  levant 
and  couchaat ;[o)  so,  a  lessor  cannot  distrain  a  stranger's  cattle,  which  get 
into  the  land  whence  the  rent  issues,  through  defect  of  fences  which  either 
the  landlord  or  the  tenant  is  bound  to  repair.(jo) 

If  the  landlord  come  to  distrain,  and  the  tenant,  seeing  him,  drive  the 
cattle  off' the  land,  the  landlord  may  follow  the  beasts,  and  distrain  them  out 
of  the  premises  if  he  had  once  a  view  of  the  cattle  on  his  land  ;  but  if  the 
beasts  go  off  the  land  of  themselves,  he  cannot  distrain  them  afterwards, (g-) 
_^  ,  though  if  the  distrainor  once  enter  the  premises  *to  distrain  the 
L  -•  cattle,  it  seems  that  they  cannot  afterwards  be  driven  off"  to  prevent 
a  distress. (}■) 

Cattle  which  are  upon  the  land  by  way  of  agisting  may  also  be  distrained 
for  rent;(s)  so,  where  beasts  were  put  into  a  field  to  graze  for  the  night,  it 
was  held  that  the  landlord  might  distrain  them  for  rent  due  out  of  the  lands 
where  they  were  pat,  although  they  had  been  put  in  with  his  consent,  such 
consent  not  beincr  deemed  a  waiver  of  his  ri^-ht  to  distrain  unless  it  had 
been  so  expressly  agreed,  and  being  but  a  parol  agreement,  it  could  not 
alter  the  oricrinal  contract  between  the  lessor  and  lessee,  from  which  the 
power  to  distrain   arose  ;(^)  but  the   owner  of  the  cattle  was   afterwards 

(t)  18  E.  3,  4 ;  1  Inst.  47  ;  2  Inst.  82 ;  2  Mod.  61 ;  Gilb.  Distr.  42.      Q)  14  H.  8,  25  b. 
(;«)  Clark  v.  Gaskarth,  8  Taunt.  431  ;p  S.  C,  2  J.  B.  Moore,  491,  recognised  in  Clarke 
V.  Calvert,  3  J.  B.  Moore,  96.  (n)  Sup. 

(0)  7  H.  7,  1  b.  2,  a. ;  15  H.  7, 17  b.  {p)  Dy.  317  b.  318  a. 

\q)  1  Inst.  161,  a.  (r)  Clement  v.  Milner,  3  Esp.  95. 

(s)  1  Roll.  Abr.  669.     (t)  Fowkes  v.  Joyce,  3  Lev.  260 ;  S.  C,  2  Vent.  50  ;  2  Lutw.  1161, 

(1)  Cresson  v.  Stout,  17  Johns.  106.  Vause  v.  Russel,  2  M'Cord,  329  ;  but  where  the 
fixture?  arc  severed  by  the  tenant  (not  for  a  mere  temporary  purpose,)  they  become  liable 
as  other  chattels.     Riynolds  v.  Shuler,  5  Cow.  500. 

pEng.  Com,  Law  Reps.  iv.  154. 


RECOVERY    OF    RENT.  173 

relieved  in  equity  on  the  ground  of  fraud  in  the  landlord,  who  had  consent- 
ed to  their  being  put  in,  that  he  might  distrain  thein.(M) 

238.  Again,  beasts  of  the  plough  and  implements  of  husbandry  and  tools 
by  which  a  man  gains  his  livelihood  are  not  distrainable ;  but  these  are 
only  conditionally  exempt,  the  former,  if  there  are  other  moveable  chattels 
to  the  amount  of  the  rent  and  expenses  ;(.f)  the  latter,  if  they  are  in  actual 
use,  and  there  is  sufficient  distress,  as  in  the  case  of  a  stocking-frame, (y)  or 
a  loom  ;(z)  but  where  a  threshing-machine  was  not  in  use,  and  there  was 
not  evidence  of  other  goods  being  on  the  premises,  this  was  held  not  to  be 
privileged  from  distress.(«)(l) 

Some  other  things,  as  a  horse  on  which  a  person  is  riding,  or  an  axe  in 
the  hands  of  a  person  cutting  wood,  have  been  held  to  be  exempt,  on  the 
additional  ground,  that  the  exercise  »of  the  power  of  distress  might  (-*234-| 
in  such  cases  frequently  lead  to  a  breach  of  the  peace. (6)(2)  L         J 

239.  In  the  next  place,  for  the  benefit  of  trade,  goods  sent  to  a  tradesman 
for  the  purpose  of  being  worked  upon  in  the  way  of  his  trade,  as  cloth  to  a 
tailor,  yarn  to  a  weaver,  a  horse  to  a  smith,  and  the  like,  are  not  distraina- 
ble ;(c)  so,  a  beast  sent  to  be  slaughtered  ;(f?)  so,  goods  in  the  hands  of  a 
factor  are  privileged. (e)(3) 

(m)  lb.;  and  see  2  Wms.  Saund.  290,  n.  (7\ 

{x)  1  Inst.  47,  a.  b. ;  Piggott  v.  Birtlcs,  1  M.  &,  W.  441. 

(y)  Simpson  v.  Hartopp,  Willes,  5] 3. 

Iz)  Gorton  v.  Falkner,  4  T.  R.  5fi5 ;  Roberts  v.  Jackson,  Peake's  Add.  Ca.  37. 

(«)  Fenton  v.  Logan,  9  Bing.  676 ;»  S.  C,  3  M.  &  So.  82,  recognising  Wood  v.  Clarke, 
1  Cr.  &  J.  484. 

{h)  1  Inst.  47,  a. ;  see  also  Webb  v.  Bell,  1  Sid.  440,  cited  in  4  T.  R.  569 ;  Storey  v, 
Robinson,  6  T.  R.  138. 

(c)  Bro.  Distress,  99  ;  1  Inst.  47;  3  Bulst.  270;  1  Roll.  Abr.  668  ;  Musprat  v.  Gregory, 
3  M.  &  W.  677  ;  S  C,  2  Gale,  158. 

{(/)  Brown  v.  Slicvil  or  Sberil,  2  Ad.  &  E.  138  ;'•  S.  C,  4  Nev.  <fe  Man.  277. 

(e)  Gilman  v.  Elton,  3  B.  &  B.  75  ;'■■  S.  C,  6  J.  B.  Moore,  243 ;  Thompson  v.  Mashiter, 
1  Bing.  283  ;i  S.  E,  8  J.  B.  Moore,  254 ;  Matthias  v.  Mesnard,  2  C.  &  P.  353  ;=  Adams  v. 
Grane,  1  Cr.  &  M.  380. 

(1)  In  Pennsylvania,  by  the  act  of  1828,  certain  goods  are  exempted  from  distress  and 
execution;  among  these  are  the  necessary  tools  of  a  tradesman,  not  exceeding  in  value 
twenty  dollars,  a  stove,  &c.,  &c.  Under  this  it  has  been  held  that  a  weaver's  loom  was 
included  within  the  term  necessary  tools.  M'Dowrll  v.  Shotwcll,  2  Whart.  26.  Tiie 
stove  must  be  in  use  in  his  family.     Kessler  v.  M'C^onachy,  1  Rawlc,  435. 

(2;  But  in  Mass.,  where  it  seems  an-  attachment  is  regulated  by  the  rule  of  distress,  a 
stage  coach  ready  to  start,  and  one  which  had  just  arrived  but  not  deposited  the  passengers 
at  their  homes  as  was  customary,  were  held  liable  to  seizure.     Potter  v.  Ilall,  3  Pick.  368. 

(3  J  S.  P.  of  goods  received  on  storage  by  one  merchant  for  another,  wiio  was  the  factor, 
Brown  v.  Sims,  17  S.  &  R.  139.  Nor  a  horse  sent  to  a  livery  stable  to  be  taken  care  of, 
Youngblood  v.  Lowry,  2  M'Cord,  39  ;  nor  goods  sent  to  an  auction  store  for  sale,  Iline. 
ley  V.  Wyatt,  1  Bay,  102  ;  nor  an  apprentice  boy.  Phajlon  v.  M'Bride,  1  Bay,  170j  but 
the  exemption  for  benefit  of  trade  extends  only  to  strangers  ;  hence  goods  sent  to  be  fulled 
at  the  mill  of  the  owner,  may  be  distrained.  Haskins  v.  Paul,  4  Ilalst.  110.  But  this 
privilege  in  favour  of  trade  is  confined  to  transactions  within  the  ordinary  business  of  the 
party  ;  it  does  not  necessarily  result  that  where  a  retail  grocer  received  a  ceroon  of  indigo 
on  consignment,  it  is  protected  from  distress.  Bevan  v.  Crooks,  7  W.  &  S.  302.  Replc- 
vin  is  the  only  remedy  for  a  stranger  where  notice  of  the  distress  has  been  given  to  the 
tenant.     Caldelcugh  v.  Hollingswortli,  8  W.  «&,  S.  302. 

«23  Eng.  Com.  Law  Reps.  416.     ^29  Id.  51.      <=7  Id.  355.    ^8  Id.  321.    »12  Id.  1 66. 

July,  1846.— 12 


174  crabb's  law  of   real  property. 

For  the  same  reason  thing's  at  an  inn  are  privileged  from  distress,  more 
especially  as  inns  are  places  devoted  to  the  public  service ;(/)(!)  but  the 
things  must  be  actually  within  the  premises  of  the  inn  to  be  so  privileged, 
and  not  removed  to  some  distant  place  for  the  convenience  of  the  innkeeper, 
and  therefore  a  race-horse,  in  a  stable  belonging  to  an  innkeeper  a  mile  dis- 
tant from  the  inn,  was  held  not  exempt  from  distress  ;(/)  so,  a  livery  stable- 
keeper  is  not  privileged  like  an  innkeeper,  and  therefore  a  chariot  standing 
at  a  livery  stable  might  be  distrained. (g") 

240.  Again,  goods  in  the  custody  of  the  laAV  are  privileged  from  dis- 
tress,(2)  therefore  goods  distrained  datnage  feasant  cannot  be  distrained  for 
rent.(/t)  So,  goods  under  an  attachment  cannot  be  distrained  ;(r)  so,  goods 
taken  in  execution  :[k\  but  when  the  sheriff  has  abandoned  the  possession 

-.  of  the  goods  after  having  made  the  seizure,  it  was  held  that  *lhe 
L  J  goods  were  no  longer  under  the  protection  of  the  law,  and  might  be 
distrained ;(/)  so,  if  goods  remain  on  the  demised  premises  after  a  fictitious 
sale  made  under  a  fraudulent  execution,  they  are  liable  to  the  landlord's  dis- 
tress ;(»?*)  so,  corn  in  the  blade,  taken  and  sold  under  a  Ji.  fa.,  afterwards 
continuing  on  the  premises  before  any  rent  was  due,  might  be  distrained, 
as  it  seems,  for  rent  subsequently  due.(/i)  Sheaves  of  corn  before  the  2  W. 
&  M.  (see  Dig.  P.  ii.  tit.  Distress)  could  not  be  taken  in  distress,  because 
such  things  could  not  be  restored  to  the  owner  in  the  same  plight  and  con- 
dition as  they  were  in  at  the  time  of  taking  them.(o) 

241.  So,  things  for  which  replevin  will  not  lie,  as  things  like  money  in  a 
bag,  which  cannot  be  known  again  ;(/j)  but  a  bag  of  money  sealed  may  be 
distrained,  because  it  may  be  known  again. ((/) 

So,  again,  where  the  estate  of  a  tenant  at  wilt  is  determined  either  by 
his  own  death  or  by  the  act  of  the  landlord,  the  corn  sown  by  him  cannot 
be  distrained  for  rent  due  from  a  subsequent  tenant  ;(r)  but  where  by  a 
custom  a  tenant  has  left  the  away-going  crop  in  the  barns,  the  landlord  may 
distrain  the  same  at  the  expiration  of  six  months  after  the  determination  of 
the  term.(s) 

c.   Whoi  Distress  may  be  made. 

242.  A  distress  for  a  rent-service  or  rent-charge  cannot  be  in  the  night  ;(f) 
and  in  Aldeuburgh  v.  Peaple(M)  it  was  ruled  that  no  one  had  a  right  to 

(/)  Crosier  v.  Tomlinsoii,  2  Keny.  439  ;  S.  C,  Barnes,  472. 

ig)  Francis  v.  Wyatt,  1  Bl.  483  ;"S.  C,  3  Burr.  1408.  (h)  1  Inst.  47,  a. 

(i)  Monk's  case,  1  Vent.  222,  ar^.  {k)  Eaton  v.  Soutliby,  Willes,  136. 

(/)  Blades  v.  Arundale,  1  M.  &  S.  711.  (w)  Smith  v.  Russell,  3  Taunt.  400. 

(n)  Gwillim  v.  Barker,  1  Price,  274.  (o)  I  Inst.  47,  a. 

{p)  Keilw.  145  ;  2  Inst.  82 ;  Roll.  Abr.  C67.  (7)  22  E.  4,  50  b. 

(1)  Eaton  V.  Southby,  Willes,  131.  (s)  Beavan  v.  Delahay,  1  H.  Bl.  5. 

(/)  1  Inst.  142 ;  7  Co.  7  a.  9  Co.  66  a.  (u)  6  C.  &,  P.  212.> 

(1)  Russel  V.  Doty,  4  Cow.  576.  Hamilton  v.  Reedy,  3  M'Cord,  40.  Pierce  v.  Scott,  4 
W.  &  S.  344. 

(2)  Or  goods  of  a  boarder  at  a  lodging-house.     Riddle  v.  Whelden,  5  Whart.  9. 

*25  Eng.  Com.  Law  Reps.  36. 


RECOVERY    OF     RENT.  ITS 

make  a  distress  after  dark.     Sed  secus  as  to  distress  for  damage  feasant, 
see  post,  Injuries  to  Things  real. 

*As  rent  is  not  due  until  the  last  minute  of  the  natural  da)'^  on  p^oqei 
which  it  is  payable, (.r)  it  follows,  that  a  distress  for  rent-arrear  can-  L  -I 

not  be  made  on  that  day.(y)(l) 

At  the  common  law,  if  a  lease  was  made  at  Michaelmas  for  a  year, 
reserving  rent  on  the  feasts  of  the  Annunciation  and  St.  Michael,  the  lessor 
was  deprived  of  his  remedy  by  distress  for  the  rent  due  at  Michaelmas, 
because  he  could  not  distrain  at  the  expiration  of  the  term  ;(z)  but  if  by  the 
custom  of  the  country  or  by  express  stipulation  between  the  parties,  the 
rent  be  payable  on  the  day  on  which  the  tenant  enters,  the  landlord  may- 
distrain  for  it  on  that  day  ;(o)(2)  and  so  it  seems  by  the  usage  of  a  parish,  a 
quarter's  rent  may  be  distrained  for  before  the  end  of  the  quarter  :(b)  and 
by  the  8  A.  c.  14,  s.  6,  the  landlord  may  distrain  for  such  arrears  withia 
six  months  after  the  determination  of  the  term.  See  Dig.  P.  ii.  tit.  Dis- 
tress, P.  iii.  tit.  Landlord  and  Tenant.  And  where  by  the  custom  of 
the  country  a  tenant  may  leave  his  away-going  crop  in  the  barns,  it  has 
been  held  that  the  landlord  may  distrain  after  six  months  have  expired  from 
the  determination  of  the  term  ;(c)  and  where  the  tenant  dies  before  the 
expiration  of  the  term  and  his  personal  representative  continues  in  posses- 
sion during  the  remainder  of  the  term,  the  landlord  may  distrain  within  six 
months  after  the  end  of  the  term  for  rent  due  for  the  whole  term  •,{d\  and 
the  statute  applies  to  cases  only  in  which  the  tenancy  has  been  determined 
by  lapse  of  time,  or  perhaps  by  notice  to  quit,  and  not  to  cases  where  it  has 
been  put  an  end  to  -by  the  wrongful  disclaimer  of  the  tenant. (e)  3^00-7-1 
*Distresses  for  the  recovery  of  rent  may  by  the  3  &  4  W.  4,  c,  27,  L  -' 
s.  2,  be  made  at  any  time  within  twenty  years  next  after  the  time  at  which 
the  right  to  make  such  distress  has  accrued,  and  by  s.  42  of  the  same  act 
no  arrears  of  rent  can  be  recovered  by  distress  for  more  than  six  years. (/) 

d.  Place  u'here  Distress  may  he  made,  or  otherwise, 

243.  The  distress  must  be  made  upon  the  land  from  which  the  rent  issues, 
and  therefore  where  the  exclusive  use  of  the  land  of  the  river  Thames  oppo- 
site and  in  front  of  a  wharf,  between  high  and  law  water  mark,  as  well  when 
covered  with  water  as  dry,  for  the  accommodation  of  the  tenants  of  the 

{x)  See  ante,  s.  194.     (?/)  4  H.  6,  31 ;  21  H.  6,  40 ;  and  see  Harg.  Co.  Litt.  47,  b.  n.  (6). 

(«)  1  Inst.  47,  1).;  1  Roll.  Abr.  670,  pi.  10.     («)  Buckley  v.  Taylor,  2  T.  R.  600. 

(/;)  Tracey  v.  Talbot.  6  Mod.  214.  (c)  Beavan  v.  Dolahay,  1  H.  Bl.  5. 

(rf)  Braitliwaite  v.  Cooksev,  1  H.  Bl.  465.  Sec  also  Boraston  v.  Green,  16  East,  81 ; 
Knight  V.  Bfnnett,  3  Bing.  SGG." 

{e)  Doe  V.  Williams,  7  C.  &,  P.  323.>'  Sec  further,  Nuttall  v.  Staunton,  4  B.  &  C.  51.< 
Taylerson  v.  Peters,  7  Ad.  &  E.  110  ;i  S.  C,  2  Nev.  &,  P.  622.  Also  Dig.  P.  ii.  tit.  Dis- 
tress; P.  iii.  tit.  Landlord  and  Tenant. 

(/)  Paget  V.  Foley,  2  Bing.  N.  C.  67D  ;<'  S.  C,  3  Scott,  120 ;  2  Hod.  32.  See  Dig.  P. 
iii.  tit  Limitations. 


(1)  Garro  v.  Hart,  Hard.  (Ky.)  297. 

(2)  The  same  principle  is  recognised  in  Russell  v.  Doty,  4  Cow.  576  Peters  v.  NeWi 
kirk,  6  Cow.  107.  Williams  v.  Howard,  3  Munf.  277.  Beyer  v.  Fcnstermacher,  2 
Whart.  95. 

•13  Eng.  Com.  Law  Reps,  9.     '32  Id.  525.     »10  Id.  276.     ■'34  Id.  45.     <=29  Id.  457 


176  crabb's  law  of   real  pnaPERXY. 

\vharf,  was  demised  as  appurtenant  to  the  wharf,  but  the  land  itself  between 
high  and  low  water  was  not  demised,  it  was  held  that  the  lessor  could  not 
distrain  for  rent-arrear,  barges,  the  property  of  the  tenant,  Ij'ing  in  the  space 
between  high  and  low  water  mark,  and  attached  to  the  wharf  by  ropes. (^)(1][ 

244.  If  the  lord  distrains  out  of  his  fee,  in  land  not  holden  of  him,  the 
tenant  may  make  rescous  unless  in  special  cases  ;(/t)  but  the  queen  by  her 
prerogative  may  distrain  upon  other  land  than  her  own,  and  is  especially 
excepted  by  a  clause  in  the  Statute  of  Marlbridge.(z)  So,  if  the  lord  come 
to  distrain  within  his  fee,  and  the  tenant  seeing  him,  drive  the  cattle  ofi'the 
land,  then  the  lord  may  follow  the  beasts  and  distrain  them  out  of  the  pre- 
mises, if  he  had  once  a  view  of  the  cattle  on  his  land  ;(y)  but  if  the  lord 
had  no  view  of  the  cattle  within  his  fee,  though  the  tenant  drive  them  off 
purposely,  or  if  the  cattle  of  themselves  after  the  view  go  off  the  land,  or  if 
r**>^8T  ^^^  tenant  after  the  view  remove  *lhem  for  any  other  cause  than  to 
L  J  prevent  the  lord's  distress,  then  the  lord  cannot  distrain  them  ;(/:) 
but  now  by  the  11  G.  3,  c.  19,  the  landlord  is  empowered  in  case  of  frau- 
dulent removal  of  goods,  to  distrain  them,  wherever  found  ;  the  removal 
however,  to  bring  the  case  within  the  statute,  must  take  place  after  the  rent 
becomes  due,  and  must  be  secret,  not  made  in  open  day  ;(^)(2)  and  the  statute 
applies  to  the  goods  of  the  tenant  only  and  not  to  the  goods  of  a  stran- 
g-er,(m)(3)  or  a  lodger. (n) 

The  queen's  highway  was  also  by  the  ancient  common  law  considered  as 
a  place  privileged  from  distress,  and  this  is  affirmed  by  the  Statute  of  Marl- 
bridge. 

245.  A  distress  for  a  rent-service  may  be  taken  in  any  part  of  the  land 
holden,  or  for  a  rent  charged  or  reserved  upon  a  lease  upon  any  part  of  the 
land  out  of  which  the  rent  issues,  and  if  a  house  be  upon  the  land  demised 
or  charged,  a  distress  may  be  taken  in  the  house,  if  the  outer  door  be  open  ;(o) 
and  although  the  outer  door  can  in  ro  €ase  be  broken  open,  yet  the  person 

(^)  Capcl  V.  Buszard,  6  Binjr.  150  •;>  S.  C,  3  M.  &  P.  480  ;  2  Man.  &  Ryl.  197 ;  3  Y. 
&  J.  344  ;  overruling  S.  C,  4  Bing.  137  ;'=  V2  J.  B.  Moore,  339  ;  2  C.  &  P,  541. 

(A;  1  Inst.  lGl,a.  (i)  2  Inst,  132.  (j)  1  Inst.  IGl,  a. 

(A-)  1  Inst.  161,  a. 

(/)  Watson  V.  Main,  3  Esp.  15  ;  Rand  v.  Vaughan,  I  Bing.  N.C.  767/' 

[in)  Thomson  v.  Adams,  .5  M.  &,  S.  38. 

(«)  Postman  v.  Harrell,  6  C.  &.  P.  225.*  See  also  Bach  v.  Meats,  5  M.  &  S.  200 ; 
Brooke  v.  Noakcs,  8  B.  &.  C.  537  ;f  Bromley  v.  Holden,  1  Moo.  &,  M.  175;?  and  Dig,  p, 
iii.  tit.  Landlord  and  Tenant. 

(0)  1  Roll.  Abr.  671 ;  Com.  Dig.  tit.  Distress  (A,  3). 

(1)  Pemberton  v.  Van  Rensselaer,  1  Wend.  309. 

(2)  This  st;itnte  remedying  the  defect  in  the  common  law,  has  been  re-enacted  in  many 
States.  The  rule,  that  the  removal  mue^t  have  been  after  the  rent  became  due,  under  the 
Pennsylvania  act  of  1782,  was  recognised  in  Grace  v.  Shively,  12  Serg.  &  Rawlc,  217, 
This  has  been  remedied  by  the  act  of  182.">,  and  it  is  immaterial  when  the  goods  were 
removed,  provided  it  was  fraudulent  as  to  the  landlord.  The  former  rule  prevails  in  S, 
('.,  Brown  v.  Duncan,  1  Harp.  337.  The  New  York  statute  is  said  to  extend  the  remedj 
further  than  the  English  statute.     3  Kent  Com.  481.     Reynolds  v.  Sholer,  5  Cow.  323. 

(3)  Adams  v.  La  Comb,  1  Dall.  440. 

'  Eng.  Com.  Law.  Reps.  xxix.  36.    "^Td.  xiii.  377.    ■  Id.  xxvii.  568,     ^d.  xxv.  369. 

fid.  XV.  289.    eld.  xxii.  282. 


RE  COVE  RV    OF    RENT.  177 

distraining  may  justify  breaking-  open  an  inner  door  or  lock  to  find  any  goods 
which  are  distrainable  ;(/))  so,  gates  or  inclosures  cannot  be  broken  open  or 
thrown  down  to  take  a  distress  ;(y)  except  now  under  the  11  G.  2,  c.  19,  s. 
7,  in  the  case  of  a  fraudulent  removal  of  goods,  see  Dig.  D.  iii.  tit.  Landlord 
and  Tenant.  So,  where  a  person  taking  a  distress  has  been  violently  eject- 
ed, he  may  justify  breaking  open  the  door  in  order  to  complete  the  taking  •,(^r') 
and  where  a  landlord,  who  occupied  *an  apartment  over  a  mill  de-  ^qoq-i 
mised  to  his  tenant,  from  which  it  was  separated  onl)!-  by  a  boarded  L  J 
floor  without  any  ceiling,  took  up  the  floor  and  entered  through  the  aperture 
to  distrain  for  the  rent,  held  that  he  was  no  trespasser ;  and  where  a  man 
can  get  in  without  a  trespass  he  may  lawfully  distrain. (a- ) 

If  the  demises  are  several  there  must  be  separate  distresses  upon  the 
several  premises  subject  to  each  distinct  rent ;  forno  distress  on  one  part  can 
be  good  for  both  rents,  although  the  several  premises  are  demised  to  the 
same  tenant ;(/)  but  if  a  rent-charge  issue  out  of  land  in  the  possession  of 
several  tenants,  a  distress  may  be  taken  upon  the  possession  of  one  for  the 
whole  rent,  for  it  issues  out  of  each  part ;(«)  so,  where  lands,  lying  in  dif- 
ferent counties,  are  held  under  one  demise  at  an  entire  rent,  the  rent  may 
be  lawfully  taken  in  either  county  for  the  whole  rent  in  arrear.(a:j 

e.  Planner  of  making  a  Distress,  and  the  Proceedings  thereon. 

246.  The  distress  may  be  made  by  the  landlord  himself,  or  by  his  autho- 
rized agent  or  bailifr,(l)  in  the  former  case  if  the  landlord  come  into  the 
house,  and  seize  upon  any  article  as  a  distress  in  the  name  of  all  the  goods 
in  the  house,  it  will  be  a  good  seizure  of  all ;(»/)  and  any  declaration  on  the 
part  of  the  landlord  will  be  sufficient  to  commence  a  distress,  as  where  he 
declared  on  the  premises  "  that  nothing  shall  be  removed  until  my  rent  is 
paid,"  it  was  held,  that  in  consequence  of  such  declaration  the  landlord  had 
a  right  to  take  and  bring  back  an  article  which  had  been  removed  ;(2)  so, 
where  a  broker  went  to  the  tenant's  house,  and  pressed  for  payment  r*94nn 
of  rent  alleged  to  be  due  and  a  sum  for  the  *expenses  of  the  levy,  L  J 
but  touched  nothing  and  made  no  inventory,  and  the  tenant  then  paid  the 
rent  and  expenses  under  protest,  it  was  held,  in  an  action  against  the  land- 
lord for  an  excessive  distress,  he  could  not  say  there  had  been  no  distress  ;{a\ 
so,  where  the  landlord's  agent  went  upon  the  premises  and  gave  a  written 
notice  that  he  had  distrained  certain  goods,  and  unless  the  rent  was  paid  or 
the  goods  replevied,  that  they  would  be  sold  in  five  days  ;  this  was  held  to 

(p)  Brown  v.  Dean,  Bull.  N.  P.  881  ;  Browning  v.  Dann,  Ca.  temp.  Hardw.  168. 

(9)  1  Inst.  161,  a.  (r)  VVoodf.  L.  .t  T.  329,  4th  ed.,  by  Harr.  <fc  VVoIL 

(s)  Gould  V.  Bradstock,  4  Taunt.  562. 

(t)  Roofers  V.  Bcrkmir     Ca.  temp.  Hardw.  245 ;  S.  C,  2  Str.  1040. 

(m)  1  Roll.  Abr.  671. 

(x)  Walter  v.  Rumball,  1  Ld.  Raym.  55 ;  S.  C,  12  Mod.  76;  1  Salk.  247. 

(V)  Dodd  V.  Monger  or  Morgan,  6  Mod.  215;  S.  C,  Holt,  416. 

(z)  Wood  V.  Nunn,  5  Bing.lO.h     2  M.  &  P.  27. 

(u)  Hutchins  v.  Scott,  2  M.  &,  W.  809  ;  S.  C,  Murr.  &.  Hurl.  194. 


(1)  In  the  name  of  .the  landlord.     Swearingen  v.  M'Grudcr,  4  Har.  &  McH.  347. 

i>Eng.  Com.  Law  Reps.  xv.  346. 


178  crabb's  law  of  real  property. 

he  a  sufficient  seizure,  although  he  had  left  no  one  in  possession  ;(6)  but 
where  a  broker's  man  left  the  premises,  of  which  he  had  possession,  it  was 
held,  that  the  landlord  had  no  right  six  days  after  to  break  into  the  house 
and  take  the  goods  away.(c) 

A  landlord  is  prima  facie  liable  for  the  act  of  the  bailiff  if  he  conduct  the 
distress  irregularly,  unless  he  repudiates  the  act  as  soon  as  he  is  made  ac- 
quainted with  it;((/)  and  to  justify  the  landlord  in  calling  in  the  aid  of  a 
police  officer,  he  must  shew  that  he  had  reason  to  apprehend  violence. (e) 

247.  Where  the  bailiff"  distrains  he  must  do  so  under  a  written  autho- 
rity(l)  signed  by  the  landlord,  which  is  termed  a  ivarrcmt  of  distress,  (for 
the  form  of  which  see  2  Prec.  in  Conv.  tit.  Distress,  p.  302) ;  and  in  the 
case  of  coparceners  this  must  be  signed  by  all  :(/)  but  one  of  several  joint- 
tenants  may  sign  a  warrant  of  distress,  and  appoint  a  bailiff'  to  distrain  for 
rent  due  to  all,  if  the  others  do  not  interfere  ;(§•)  but  where  a  change  has 
been  made  in  the  name  of  the  person  appointed  to  distrain  it  will  not  render 
the  warrant  void  if  it  appears  to  have  been  done  with  the  concurrence  of  the 

landlord  ;(//)  so,  a  man  may  distrain  without  *any  express  autho- 
L  -'  rity  previously  given,  provided  he  afterwards  obtains  the  assent  of 
the  landlord  to  what  he  has  done  ;(i)  and  a  subsequent  agreement  to  a  dis- 
tress, given  by  the  landlord  to  the  person  making  it,  is  as  much  an  authority, 
as  if  he  had  previously  appointed  him  bailiff'  to  distrain  ;(A')  and  Avhen  in 
replevin  it  is  proved  that  the  landlord  employs  the  attorney  to  defend  the 
broker,  that  is  sufficient  evidence  of  the  broker's  authority  to  distrain  in  the 
absence  of  any  warrant. (/) 

248.  At  common  law  a  man  might  have  driven  a  distress  whither  he 
pleased, (m)  but  this  evil  was  remedied  first  by  the  Statute  of  Marlbridge 
prohibiting  a  distress  to  be  driven  out  of  the  county;  afterwards,  still  fur- 
ther, by  the  1  &  2  P.  &  M.  c.  112;  11  G.  2,  c.  19,  s.  8;  and  5  &  6  W.  4, 
c.  59,  see  Dig.  P.  ii.  tit.  Distress  ;(2)  yet  if  the  tenancy  is  in  one  county 
and  the  manor  in  another,  the  lord  may  drive  the  distress  taken  in  the 
tenancy  into  the  manor  in  the  other  county  ;(n) ;  so,  where  the  lands  are 
held  under  one  demise,  at  one  entire  rent,  a  distress  may  be  lawfully  taken 
in  either  county,  and  chasing  a  distress  over,  where  the  counties  adjoin,  is 

(h)  Swann  v.  Falmouth  (Earl),  8  B.  &  C.  456  ;'  S.  C,  2  Man.  &  Ryl.  534. 
(c)   K'usscU  V.  Rider,  6  C.  &  P.  416.''  ('/')  Hurry  v.  Rickman,  1  Moo.  &,  Rob.  126. 

(e)  Slddmore  v.  Booth,  6  C.  &,  P.  777."       (  f)  Bailer's  case,  1  Leon.  64. 
(^)  Robinson  v.  Hoffman,  4  B\ng.  562  ;"■  S".  C,  1  M.  &.  P.  474  ;  3  C.  &  P.  234. 
(A)  Toplis  V.  Grane,  5  Bing.  N.  C.  636  ;■>  S.  C,  7  Scott,  620. 
(t)  Gilb.  Disf.r.32. 

(k)  Bro.  Abr.  tit.  Traverse,  3  ;  Lamb  v.  Mills,  4  Mod.  378  ;  Trevillian  v.  Pine,  11  Mod. 
112.  (/)   Duncan  v.  Meicleham,  3  C.  &  P.  172." 

(m)  2  Inst.  106.  (n)  Keilw,  50;  Bro.  Distress,  33. 


(1)  This  is  not  required  in  Pennsylvania.     Franciscus  v.  Reigart,  4  W.  98.    Jones  v. 
Gundrim,  3  W.  &  S.  531. 

(2)  He  may  impound  on  the  premises.     Woglam  v.  Cowperthwait, 2  Dall.  68.     M'Kin- 
ney  v.  Reeder,  6  W.  34. 

iEng.  Com.  Law  Reps.  xv.  264.    ^Id.  xxv.  463.    'Id.  xxv.  646.     "Id.  xv.  73. 
•Id.  XXXV.  256.    «Id.  xiv.  257. 


RECOVERY    OF     RENT.  179 

a  continuance  of  the  taking  ;(o)  if  the  hundred  in  which  the  cattle  were  dis- 
trained be  in  one  county,  and  the  hundred  into  which  they  were  driven  be 
in  another,  the  venue  may  be  laid  in  either  county. (/)) 

By  the  1  &  2  Ph.  &  M.  c.  12,  no  cattle  can  be  driven  out  of  the  hun- 
dred, &c.,  except  to  a  pound  overt  in  the  same  shire,  and  the  5  &  6  W.  4, 
c.  59,  makes  it  obligatory  on  the  distrainor  to  provide  food  for  impounded 
animals,  and  authorizes  him  to  recover  his  expenses  ;(7)  and  under  this  act  it 
has  been  held  that  distrainors  are  bound  to  see  that  the  pound  to  whiciT  they 
take  the  distress  is  in  a  fit  *state  to  receive  it ;  and  it  is  no  defence  p#242"l 
for  abusing  the  distress  by  putting  the  animals  in  a  muddy  pound,  L  -• 
that  the  place  was  the  manor  pound. (r) 

249.  At  the  common  law  distresses  for  rent-arrear  could  not  be  sold,  but 
only  detained  as  pledges  for  enforcing  the  payment  of  such  rent ;  but  the 
2  W.  &  M.  sess.  1,  c.  5,  s.  2,  provides  that  at  the  expiration  of  five  days 
after  notice  of  distress  to  the  tenant,  and   no  replevy  of  the  same,  the  dis- 
trainor may  cause  the  same  to  be  appraised  and  sold.(l)     Under  this  Act  it 
has  been  held,  that  five  times  twenty-four  hours  must  elapse  before  the 
sale  ;(s)  so,  the  five  days  are  reckoned  inclusive  of  the  day  of  sale,(^)(2) 
and  a  reasonable  time  after  the  expiration  of  the  five  days  is  allowed  to  the 
landlord  for  appraising  and  selling  the  goods  ;(m)  but  if  they  remain  longer, 
without  the  tenant's  consent,  distrainor  will  be  deemed  a  trespasser  ;(a;)  so, 
if  the  goods  be  not  sold  after  the  five  days,  the  tenant  may  replevy  them,  for 
at  common  law  the  distress  was  at  all  times  replevisable.(ii/)     On  other  points 
of  construction  of  this  and  the  other  statutes  relating  to  distresses,  see  Dig. 
P.  ii.  tit.  Distress;  and  as  to  the  forms  of  notices,  and  other  forms  of  pro- 
ceeding in  distresses,  see  2  Prec.  in  Conv.  tit.  Distress  ;  and  as  to  pound- 
breach  and  rescous,  and  also  as  to  unlawful  and  irregular  distresses,  see 
post,  Injuries  to  Things  Real  and  their  Remedies. 

250.  On  the  same  principle  that  distresses  were  pledges,  the  distrainor 
was  not  and  still  is  not  at  liberty  to  deal  with  a  distress  as  his  own,  there- 
fore he  cannot  make  use  of  the  distress,  as  to  work  a  horse  and  the  like,  and 
it  was  even  thought  that  he  could  not  do  anything  for  the  owner's  benefit, 
as  to  milk  a  cow,  without  his  consent ;(?)  but  this  was  never  settled  as 
law;(a)  yet  it  has  been  held,  that  *where  a  man  distrained  barrels  p*243"l 
of  beer,  and  drew  beer  out  of  one  of  them,  he  was  a  trespasser  ab  ^ 
initio  as  to  that  barrel  only.(&) 

(o)  Walter  V.  Rumball,  1  T.d.  T?aym.  55  ;  S.  C,  12  Mod.  76  ;  1  Salk.  247. 

(p)  Pope  V.  Davis,  2  Taunt.  252.  (q)  See  Dig.  sup. 

(r)  Wilder  v.  Speer,  8  Ad.  &  E.  517  ;p  S.  C,  3  Nev.  &  P.  536. 

(s)  Harper  v.  Tassvvcll,  6  C.  &  P.  166.1 

{t )  Wallace  v.  King,  1  H.  BI.  1 3.  (u)  Pitt  v.  Shew,  4  B.  &  A.  208.'- 

{x)  Griffin  V.  Scott,  2  Str.  717  ;  S.  C,  2  Ld.  Raym.  1424. 

iy)  Jacob  V.  Kino;,  5  Taunt.  451.^     (z)  1  Ventr.  37.     {a)  Cro.  El.  7S3.     (h)  6  Mod.  216. 


(1)  The  sale  cannot  be  made  without  this  notice  or  he  will  be  a  trespasser  ab  initio. 
Kerr  V.  Sharp,  14  S.  ifc  R.  402. 

(2^  In  Pennsylvania  it  is  reckoned  exclusive  of  the  day  of  distress;  and  if  t?unday  be  the 
last  of  the  five  days  it  is  not  to  be  counted.     M'Kinley  v.  Reader,  6  W.  37. 

p35  Eng.  Com.  Law  Reps.  450.     <.25  Id.  336.      '6Id.  403,    «1  Id.  154. 


180  CRAB  b' 3  LAW  OF  REAL  PROPERTY. 

So,  if  a  man  distrains  dead  goods,  as  utensils  of  a  house  or  such  like, 
which  may  take  damage  by  wet  or  weather  and  the  like,  he  ought  to  irai- 
pound  them  in  a  house  or  other  pound  covert  within  the  proper  distance,  as 
prescribed  by  the  1  &  2  Ph.  &  M.  ;(c)  for  if  he  impounded  them  in  a  pound 
overt  he  ousfht  to  answer  for  them.(r/)  If  a  man  distrains  cattle  and  puts 
them  in  a  pound  overt,  it  was  said  the  owner  ought  to  keep  them  at  his 
peril,  for  it  was  lawful  for  him  to  come  there  for  this  purpose ;  but  if  put 
in  a  pound  covert  or  close,  there  the  distrainor  ought  to  keep  them  at  his 
peril,  and  yet  he  should  not  have  any  satisfaction  for  it.(e) 

II.  3»cmcTrn  i)»  Hut  id. 
251.  At  common  law  there  was  a  material  difference  between  the  remedy 
by  distress,  and  the  remedy  by  re-entry,  for  in  the  case  of  distress  for  non- 
payment of  rent,  no  previous  demand  of  the  rent  in  arrear  was  necessary; 
but  where  the  remedy  was  by  re-entry,  there  must  have  been  an  actual 
demand  made  previous  to  the  entry,  and  all  the  formalities  in  making  the 
demand  as  to  time,  place,  amount  of  rent  and  other  particulars,  must  have 
been  strictly  observed  ;(/)(!)  unless  by  consent  of  the  parties  the  previous 
demand  was  dispensed  with,  for  by  "special  consent  of  the  parties  re-entry 
may  be  for  default  of  payment  of  rent  without  demand  of  it  ;"(g")  and  a 
proviso  in  a  deed  for  re-entry  for  non-payment  of  rent,  "  although  no  demand 
thereof  should  be  lawfully  made,"  has  been  held  in  more  than  one  case  to 
dispense  with  any  demand  at  all;(//)  and  this  clause  is  commonly  inserted 
in  leases  and  annuity  deeds. 

*In  order  to  obviate  the  difficulties  which  attended  making  such 
[*24-4J  (^p^and,  it  is  provided  by  the  4  G.  2,  c.  28,(2)  that  where  one  half 
year's  rent  is  in  arrear,  and  the  landlord  has  right  by  law  to  re-enter  for 
non-payment,  he  may  without  any  formal  demand  or  re-entry  serve  a  decla- 
ration in  ejectment  ;(z)  but  the  statute  dispenses  with  the  demand  of 
the  rent  in  those  cases  only  where  there  is  not  sufficient  distress,  as 
well  as  six  months'  rent  in  arrear,  it  is  therefore  still  necessary  for  the 
lessor  to  comply  with  all  the  formalities  of  the  common  law,  before  he  can 
proceed  on  a  clause  of  re-entry  for  non-payment  of  rent,  if  a  sufficient  dis- 
tress can  be  found  ;(A')  but  an  insertion  in  the  proviso  of  the  lease,  that  the 

(c)  See  Dig.  sup.  (</)  1  Inst.  147.  (e)  lb. 

(  /)  1  Saund.  2S1,  n.  (16).  (o-)  Dormer's  case,  5  Co.  40 ;  see  also  Dy.  63. 

(h)  Goodright  v.  Cator,  2  Doiigl.  477;  recognized  in  Doe  v.  Masters,  2  B  &  C.  490.' 
(i)  See  Dig.  P.  iii.  tit.  Landlord  and  Tenant.         (A-)  Doe  v.  Wandlass,  7  T.  R.  117. 


(1)  Wartenby  v.  Moran,  3  Call,  424.  Newman  v.  Ruttcr,  8  W.  51.  It  passes  to  an 
assignee  of  a  rent-charge.  Farley  v.  Craig,  6  Halst.  270.  And  the  forfeiture  is  waived 
after  entry  by  the  same  conduct  as  would  have  that  effect  before  entry.  Coon  v.  Brickett, 
2  New  Hamp.  164.  The  demand  must  be  on  the  day,  even  though  the  possession  be  vacant. 
M'Murphy  v.  IVIinon,  4  N.  H.  254.  Remsen  v.  Couklin,  13  Johns.  450.  And  entries  can- 
not be  presumed  to  have  been  made  when  the  entry  was  made  in  another  right.  Ritchie 
V.  Putman,  13  Wend.  524.  And  even  in  the  ease  of  a  rent-service  there  must  be  a  right  of 
re-entry  reserved  to  entitle  the  landlord  to  bring  ejectment.     Kcnege  v.  Elliott,  9  W.  258. 

(2)  This  Stat,  has  never  been  extended  to  Pennsylvania,  and  the  common  law  still 
governs  cases  of  this  kind.  Hence  a  demand  on  the  premises  is  essential  even  though  the 
premises  be  a  vacant  lot  and  no  one  on  the  land  to  pay  it.  M'Corraick  v.  Connell,  6 
S.  &,  R.  151. 

(9  Eng.  Com.  Law  Reps.  158. 


RECOVERY    OF     RENT.  181 

Tight  of  re-entry  shall  accrue  upon  the  rent  being  "  lawfully  demanded," 
will  not  since  this  statute  make  a  demand  necessary,  if  there  be  no  sufficient 
distress ;(/)  and  if  a  landlord  is  prevented  by  a  tenant  from  entering,  he  may 
recover  under  the  statute  without  shewing  that  there  was  actually  no  suffi- 
cient distress. (m) 

252.  The  same  formalities  are  required  in  recovering  a  nomine  pcense['n\ 
which  is  not  considered  so  much  a  remedy  for  the  recover;'  of  rent,  as  a 
penalt}^  to  oblige  the  tenant  to  a  punctual  payment ;  and  this  as  well  of  a 
rent-charge  as  a  rent-service, (o)  and  it  seems  that  there  must  be  a  demand 
as  well  of  the  penalty  as  of  the  rent,(jr))  therefore  if  it  be  granted,  that,  if  the 
rent  be  in  arrear,  the  tenant  shall  forfeit  8s.  a-day  as  a  nomme  pcente,  there 
must  be  an  actual  demand  of  the  rent  at  the  day  to  give  a  title  to  the  penalty, 
because,  until  demand  made,  it  cannot  appear  that  there  was  any  default  ;(p) 
and  if  a  lessor  avows  for  rent  and  a  nomine  pcense,  and  the  rent  was  not 
demanded,  so  that  the  nomine  pcenx  *was  not  due,  a  general  judg-  r-^.yAt^-i 
ment  for  both  shall  be  entirely  reversed. (y)  L         J 

III.  jaemrtD  bn  Strtion.(l) 

253.  The  remedy  by  action  may  be  either  by  action  of  debt,  or  action 
for  use  and  occupation,  besides  the  remedj'  given  to  landlords  by  statute  in 
case  of  execution. (r) 

At  common  law  the  remedy  by  action  of  debt  extended  only  to  rents 
reserved  on  leases  for  years,  but  did  not  affect  freehold  rents, (5)  therefore 
it  does  not  lie  for  the  arrears  of  a  rent  in  fee,  in  tail  or  for  life,  so  long  as 
the  estate  of  freehold  had  continuance ;(/)  so,  if  a  lessee  for  life  of  a  rent 
acknowledged  a  statute,  and  afterwards  leased  to  the  terre-tenant,  and  then 
the  conusee  extended,  the  latter  should  not  have  debt  for  the  rent,  though 
his  interest  was  but  a  chattel ;  for  as  to  him  the  freehold,  out  of  which  it 
was  derived  had  continuance  ;(w)  so  it  was  in  case  of  a  rent-charge,  for  if  a 
man  were  seised  of  it  in  fee,  and  it  was  in  arrear,  he  could  have  no  action 
of  debt  for  the  arrears. (.r)  But  this  rule  in  respect  of  a  rent-service  extended 
only  to  arrears  incurred  during  the  continuance  of  the  life;  for  if  lessee  for 
life  died,  the  lessor  might  have  an  action  of  debt  for  the  arrears,  because 
the  land  was  no  longer  a  securitj'^  for  the  rent  ;(y)  in  the  case  however  of  a 
rent-charge  it  appears  that  there  was  not  the  same  remedy,  for  if  a  man  seised 
of  a  rent-charsfe  in  fee  died,  neither  his  heir  nor  executors  could  have  an  action 
for  the  recovery  of  such  arrears  :  but  now  by  8  A.  c.  14,  s.  4,  this  defect 

(l)  Doe  V.  Alexander,  2  M.  &  S.  525. 

{m)  Doe  V.  Dyson,  Moo.  &  M.  77  ;"  and  see  15  East,  286. 

(n)  Sec  ante,  \  155.  {0)  Palm.  206 ;  2  Lutw.  1151. 

(p)  Maud's  case,  7  Co.  28;  Hob.  82.  208  ;  Brownl.  171.           (7)  1  Ld.  Raym.  256. 

(rj  Sec  ante,  s.  199.  (.s^  1  Inft.  162. 

(0  8  H.  6,  G  i). ;  1  Roll.  Abr.  594,  C.  55.  ('/)  1  Roll.  Abr.  596. 

(x)  1  Inst.  162  ;  4  Co.  49.  {y)  1  Inst.  162. 

(1)  Account  render  will  lie  where  the  rent  is  uncertain,  as  for  two-thirds  of  the  tolls  of 
a  mill.     Long  v.  Fitzshnmons,  1  W.  &  S.  530. 

^2i  Eng.  Com.  Law  Reps.  256. 


182  crabb's    law    of    real    property. 

in  the  law  is  supplied  by  giving  the  tenant  for  life  the  same  remedy  for  any 
arrears  of  rent  during  the  continuance  of  his  estate,  as  the  lessee  for  vfars 
enjoyed  at  common  law  ;  but  this  statute  applies  only  to  the  case  of  rent  due 
from  a  tenant  to  a  landlord,  and  does  not  extend  to  an  annuity  or  yearly  rent 
r*94fn  'i^^'S'^'^  ^^  ^'  '^^^  payable  during  the  *life  of  B.  out  of  the  lands 
L  -I  devised  by  the  same  will  to  B,,  and  therefore  during  the  continu- 
ance of  the  estate  of  freehold  in  the  rent,  an  action  of  debt  does  not  lie  by  A. 
against  B.  for  the  arrears. (z) 

245.  By  the  32  H.  8,  c.  37,  the  personal  representatives  of  a  man  seised 
of  a  rent-service,  rent-charge  or  rent-seek,  either  in  fee  "simple  or  fee  tail,  or 
for  term  of  lives,  have  now  a  double  remedy  given  them  for  arrears  of  rent, 
either  by  action  of  debt  or  by  distress  ;  the  action  of  debt  lies  not  only  against 
the  tenant  that  ought  to  have  paid  the  rent,  but  against  his  executors  and 
administrators,  and  the  distress  runs  with  the  land  as  long  as  it  continues  in 
the  tenant's  possession  that  suffered  the  rent  to  run  in  arrear,  or  any  other 
person  claiming  by  or  from  him  ;(a)  and  the  statute  has  been  held  to  extend 
as  well  to  the  executors  of  tenant  for  his  own  life,  as  to  executors  of  tenant 
pur  autre  vie  ;(6)  although  this  enlarged  construction  was  not  at  first 
admitted  :(c)  it  seems  also  doubtful  whether  this  statute  extends  to  cases  of 
arrears  due  on  leases  for  years,  since  the  statute  specifies  only  tenants  in 
fee  simple,  fee  tail,  and  for  lives,  of  rents,  &c.(f^)  See  further  on  the  con- 
struction of  that  statute  Dig.  P.  ii.  Executors. 

At  common  law  if  there  had  been  tenant  for  life  of  a  rent  and  he  died, 
the  rent  being  in  arrear,  his  personal  representatives  had  an  action  of  debt 
for  the  arrears  ;(e)  but  if  before  the  11  G.  2,  c.  19,  s.  15,  and  the  4  &  5  W. 
4,  c.  22,  they  had  no  remedy  to  recover  any  portion  of  rent  accruing  due  in 
the  interval  of  the  quarter.  See  Dig.  P.  ii.  tit.  Apportionment ;  also  ante,  § 
210,  et  seq. 

r«947-i  255.  By  the  4  G.  2,  c.  28,  any  tenant  for  life  or  years,  *or  person 
L  -'  coming  into  possession  of  lands  by  collusion  with  the  tenant,  and  hold- 
ing over  after  determination  of  the  term,  and  after  demand  and  notice  for 
delivering  possession,  is  made  liable  to  pay  double  the  yearly  value  of 
the  land,  for  the  recovery  of  which  an  action  of  debt  is  given  ;  but  it  has 
been  held  that  a  person  holding  over  under  a  fair  claim  of  right  is  not  within 
this  act,  although  it  be  decided  eventually  that  he  has  no  right ;(/)  but 
although  accordino-  to  the  order  of  the  words  in  the  act  it  should  seem  that 
the  notice  ought  to  be  given  after  the  determination  of  the  term,  yet  if  given 
before  it  has  been  held  sufRclent,r^)  the  law  being  remedial  in  favour  of 
landlords  ;(/i)  and  on  this  ground  it  was  held,  that  when  a  woman  had 
received  notice  to  quit,  and  before  the  expiration  of  the  tenancy  married,  it 
was  not  necessary  to  make  a  demand  upon  the  husband  in  order  to  entitle 

(z)  Webb  V.  J\<rgs,  4  M.  &  S.  113.  (a)  1  Inst.  162  ;  4  Co.  48.  50. 

(/>)  Hool  V.  Bell,  Ld.  Raym.  172. 
•    (c)  1  lust.  162  ;  Turner  v.  Lee,  Cro.  Car.  471  ;  see  also  Cro.  El.  332. 

((/)  Mireton  v.  Gilbee,  2  J.  B.  Moore,  48.     S.  C.  8  Taunt.  159,'  (e)  1  Inst.    62 

(  f)  Wright  V.  Smith,  5  E^p.  203.  ig)  Cutting  v.  Derby,  1  Bl.  1075. 

(h)  Wilkinson  v.CoUey,  5  Burr.  2634. 

^4  Eng.  Coin.  Law  Reps.  57. 


RECOVERY     OF     RENT.  183 

the  landlord  to  recover  the  double  value. (z)  But  this  statute  has  also  been 
considered  penal,  and  therefore  that  it  ought  to  be  construed  strictly,  and 
cannot  be  construed  to  extend  to  a  tenant  from  week  to  week. (A;) 

Where  the  demise  is  for  a  time  certain,  as  for  one  year,  and  no  longer,  a 
notice  to  quit  is  not  necessary  at  the  expiration  of  the  year,  to  put  an  end 
to  the  tenancy  ;  but  a  demand  of  possession  is  necessary  to  entitle  the 
landlord  to  double  value,  and  the  demand  may  be  made  after  the  determina- 
tion of  the  term,  but  the  landlord  will  be  entitled  to  double  value  only  from 
the  time  of  the  notice  and  demand. (/)  See  further  on  the  construction  of 
this  statute,  Dig.  P.  ii.  tit.  Ejectment. 

256.  By  the  11  G.  2,  c.  19,  s.  18,  it  is  provided  that  when  a  tenant  after 
having  given  notice  to  quit  holds  over,  he  shall  be  liable  to  pay  double  rent, 
which  may  be  *recovered  in  the  same  manner  as  single  rent,  that  is  p*.24ft"l 
by  distress,  which  is  one  point  of  distinction  between  the  provision  L  J 
in  this  statute  and  that  for  the  double  value  in  4  Geo.  2  ;(?n)  so,  a  tenant  by 
parol  demise  from  year  to  year  is  within  this  statute  and  liable  to  pay  double 
rent  on  holding  over  ;(m)  so,  if  he  gives  parol  notice  ;(?n)  so,  there  must  be 
some  fixed  time  specified  in  the  tenant's  notice  to  quit,  a  notice  that  a  tenant 
will  quit  as  soon  as  he  can  get  another  situation,  is  not  sufficient  to  render 
him  liable  for  double  rent  ;(n)  and  the  notice  must  be  such  a  one  as  would 
be  binding  on  the  tenant,  so  that  the  landlord  might  maintain  ejectment. (o) 

Under  the  4  G.  2,  an  action  may  be  supported  after  a  recovery  of  the 
premises  in  ejectment,  there  being  no  incongruity  in  bringing  the  two 
actions,  for  the  action  of  ejectment  is  to  recover  the  possession,  and  the 
action  for  double  value  is  to  indemnify  the  landlord  for  the  wrong  in  holding 
over ;(;;)  but  it  is  otherwise  in  the  case  of  a  claim  for  double  rent  under  the 
11  G.  2,  for  this  statute  gives  the  landlord  a  right  to  distrain  for  it,  which 
is  a  special  remedy  applicable  only  to  the  relation  of  the  landlord  :  upon 
this  statute  therefore  there  would  be  an  incongruity  in  applying  the  remedy 
for  double  rent  after  an  action  of  ejectment  which  treats  the  person  in 
possession  as  a  trespasser.((^)  See  further  on  the  construction  of  this  statute, 
Dig.  P.  ii.  tit.  Ejectment ;  and  on  the  action  of  debt  for  the  recovery  of  rent, 
see  post,  §  253. 

257.  Before  the  11  G.  2,  c.  19,  s.  14,  which  gives  the  landlord  an  action 
on  the  case  for  use  and  occupation  as  a  reasonable  satisfaction  for  the  lands, 
tenements  or  hereditaments  held  by  the  tenant,  an  action  of  assi(77ipsit  would 
lie  on  a  promise  to  pay  a  sum  of  money  in  consideration  of  a  *per-  r*.24q"i 
mission  to  occupy  lands  ;(/•)  but  as  this  is  a  real  contract  for  which  •• 
assumpsit  will  not  lie,  this  difficulty  was  got  rid  of  by  considering  the  sum 
to  be  paid  as  a  compensation  due  on  the  contract  and  not  as  rent,  and  the 

(i)  Lake  v.  Smith,  1  N.  R.  176. 

(fr)  Lloyd  V.  Rosbee,  2  Camp.  453  ;  See  also  Sullivan  v.  Bishop.  2  C.  &.  P.^SoD--^ 

(i)  Col)b  V.  Slokes,  8  East,  4.58.  [m)  Tiiiimins  v.  Rawlinsan,  3  Burr,  1C03 

(n)  Farrance  V.  Eiking-ton,  2  Camp.  591. 

(0)  Johnstone  v.  Huddlosto:ie,  4  B.  &  C.  922.* 

{p)  Soulsby  V.  Nevinp-,  9  East,  310  ;  See  also  Ryall  v.  Rich,  10  East,  48. 

((/)  Soulsby  V.  Nevinjr,  sup. 

(»•)  Dartnall  v.  Morgan,  Cro.  Jac.  598;  Chapman  v.  Southwicke,  1  Lev.  204, 

wl2  Eng.  Com.  Law  Reps.  170.     »10  Id.  471. 


184  crabb's    law  of  real   property. 

permission  to  occupy  as  not  amounting  to  a  demise  ;  for  a  plaintiff  would 
have  been  nonsuited,  if  he  produced  in  evidence  in  such  action  any  parol 
demise  or  agreement  with  a  reservation  of  rent.(s)  Under  this  statute 
the  landlord  who  has  rent  owing  to  him  is  allowed  to  recover,  not  the 
rent  but  an  equivalent  for  the  rent ;  and  if  the  demise  be  produced 
against  him,  it  shall  not  defeat  this  action  as  it  would  have  done  before  the 
Statute. (/)(1) 

Regularly  this  action  lies  where  there  is  no  demise  or  agreement  under 
seal;(2)  but  in  one  case  where  a  defendant  held  under  an  agreement  which 
did  not  amount  to  a  demise,  it  was  decided  that  the  action  for  use  and  occu- 
pation was  maintainable,  although  the  agreement  was  by  deed  ;  where  there 
has  been  an  actual  occupation,  the  action  lies  in  respect  of  an  incorporeal 
hereditament  ;(i«)  so,  where  there  had  been  occupation  under  an  agreement 
to  take  a  lease  of  certain  minerals,  it  was  held  not  to  be  a  mere  license,  but 
aright  constituting  an  hereditament  within  the  11  G.  2  ;(x)  so,  where  a 
lease  for  years  expired  at  Midsummer  and  the  tenant  refused  to  give  up 
possession,  insistmg  that  he  was  entitled  to  have  notice  to  quit,  and  after- 
wards continued  in  possession  until  Christmas,  and  paid  rent  to  that  time, 
when  he  tendered  the  keys  of  the  premises  to  the  landlord,  which  the  latter 
refused  to  take ;  this  was  adjudged  not  to  be  a  holding  over,  but  conclusive 
evidence  of  a  tenancy  from  year  to  year,  which  enabled  the  landlord  to 
maintain  use  and  occupation  for  a  quarter's  rent  due  at  Lady-Day  ;(i/) 
*so,  rent  may  be  recovered  in  this  action,  notwithstanding  the  build- 
L  J  ing  has  been  burnt  down  ;(s)  so,  the  landlord  may  support  this 
nction  against  the  original  tenant,  although  the  premises  are  in  the  occupa- 
tion of  an  under-tenant ;(«)  but  if  lands  are  let  to  A.,  and  B.  agree  with  the 
landlord  to  stand  in  A's  place  and  pay  rent,  the  landlord  may  afterwards  sue 
B.  for  use  and  occupation,  and  B.  cannot  set  up  A.'s  title  as  a  defence  to  the 

(s)  5  Taunt.  25.>  («i  Naish  v.  Tatlock,  2  H.  Rl.  323. 

(u)  Bird  V.  Higginson,  2  Ad.  &  Ell.  696  ;"  S.  C,  4  Nev.  &  Man.  5t)5  ;  1  Har.  &  W.  61. 
(x)  Jones  V.  Reynold^  4  Ad.  &  Ell.  805  ;'  S.  C,  6  Nev.  &  M.  441 ;  7  C.  &,  P.  335. 
(y)  Bishop  v.  Howard,  2  B.  At  C.  lOO.' 

(z)  Baker  v.  Holzapl'el,  4  Taunt.  45 ;  see  also  Izon  v.  Gorton,  5  Blng.  N.  C.  501  ;<=  Packer 
V.  Gibbins,  1  G.  &,  D.  10.  («)  Bull  v.  Sibb,  8  T.  R.  327. 


(1)  It  has  been  held  that  this  action  is  at  common  law,  indcpendcntlj'  of  the  stat.  of  Geo.  2, 
without  an  express  promise.  Gunn  v.  Scovill,  4  Day,  228.  Eppes  v.  Cole,  4  Hen.  &  Mun.  1 61. 
Roberts  v.  Tennell,  3  Munr.  253.  Crouch  v.  Brilles,  7  J.  J.  Marsh.  257.  In  New  York  a 
statute  similar  in  effect  has  been  enacted,  prior  to  which  tiie  action  could  not  be  maintained, 
except  on  an  express  promise.  Fcathcrstonliaug-h  v.  Bradshaw,  1  Wend.  135.  In  Penn- 
sylvania, the  14th  and  15th  sections  of  the  statute  are  in  force  :  and  tlie  same  point  ruled 
in  Pottv.  Lesher,  1  Yeat.  578.  It  is  immaterial  that  the  premises  be  actually  used  by  the 
tenant  if  he  had  a  rig^ht  and  an  opportunity  of  doing  so.  Grant  v.  Gill,  2  Whart.  42. 
Hemphill  v.  Flynn,  2  Barr,  144.  Little  v.  Martin  3  Wend.  219.  And  a  written  contract 
not  under  seal  may  be  given  in  evidence,  and  the  price  stipulated  cannot  be  disputed. 
Williams  v.  Sherman,  7  Wend.  109. 

(2)  It  will  not  lie  where  there  has  been  a  demise  by  deed,  even  on  an  express  assumpsit. 
Codman  v.  Jenkins,  14  Mass.  93—97;  nor  against  an  assignee  of  such  lessee,  Blume  v. 
M'Clurken,  10  W.  380 ;  nor  against  members  of  a  partnership  where  the  demise  was  by 
deed  to  one  partner.  Brook  v.  Evans,  5  W.  196.  But  if  a  tenant  enter  under  an  agree- 
ment to  take  a  lease  under  seal  and  then  refuse  to  accept,  the  action  lies.  Little  v.  Martin, 
3  Wend.  219. 

»1  Eng.  Cora.  Law  Reps.  6.    ^20  Id.  177.    ^31  Id.  184.    JS  Id.  41.  j35  Id.  138. 


RKCOVERYOFRENT.  185 

action  ;(i)  so,  this  action  will  lie  where  a  parly  has  continuctl  in  possession 
after  the  expiration  of  his  term;(r'Vl)  unless  there  be  a  new  agreement  by 
the  landlord  to  accept  another  person  as  tenant  in  his  stead, (c)(2)  and  if  the 
premises  are  in  the  possession  of  an  under-tenant,  the  landlord  may  refuse 
to  accept  the  possession,  and  hold  the  original  lessee  liable  ;[(l)  so,  before  the 
6  G.  4,  c.  16,  this  action  lay  against  a  tenant  notwithstanding  his  bank- 
ruptcy .(e) 

258.  As  to  the  cases  to  which  this  action  does  not  apply,  if  a  landlord 
accept  of  an  under-tenant  and  distrain  upon  him  for  rent,  he  cannot  after- 
wards proceed  for  use  and  occupation  against  the  original  tenant  ;(y)  so, 
where  lands  have  been  let  to  one  who  underlets  to  others,  and  the  latter 
receive-notice  to  quit  from  the  original  landlord  and  one  does  in  consequence 
quit,  and  the  lands  occupied  by  him  remain  unlet  for  a  year,  and  are  then 
let  by  the  original  tenant,  the  original  landlord  cannot  recover  in  use  and 
occupation  for  the  rents  of  the  unoccupied  jjremises,  as  such  circumstances 
amount  to  an  eviction  ;(^^'")(3)  so,  if  the  tenant,  with  the  landlord's  consent, 
quit  in  the  middle  of  a  quarter,  the  landlord  'cannot  recover  for  the  p^o;-,-. 
whole  quarter,  nor  pro  rata  for  that  part  of  it  during  which  the  L  -' 
occupation  continued. (A) 

So,  although  executors  and  administrators  cannot  as  a  rule  reject  the  term 
of  their  testator  or  intestate,  yet  where  an  administrator  has  merely  taken 
possession  of  the  premises  and  tried  to  let,  but  has  made  no  profit  of  them, 
he  cannot  be  charged  for  use  and  occupation  ;(^)  so,  this  action  is  not 
maintainable  against  a  husband  alone,  if  his  wife  held  under  a  yearly  ten- 
ancy before  marriage,  the  rent  being  payable  half-yearly,  where  part  of 
such  rent  was  due  from  the  wife  dum  sola,  and  the  remainder  accrued  after 
the  coverture  ;(/c)  so,  this  action  will  not  lie,  where  the  title  is  in  dispute,  for 
the  Courts  will  not  try  title  by  such  an  action. (/) 

This  action  is  founded  on  contract  and  does  not  apply  to  an  adverse  or 
tortious  holding ;(4)  therefore  the  plaintiff,  after  recovery  in  ejectment  of 

{h)  Pliipps  V.  Sculthorpe,  1  B.  &  A.  59;  sec  also  Matthews  v.  Sawell,  8  Taunt.  270;' 
Ibbs  V.  Richardson,  9  Ad.  &  Ell.  849.?  (c)  Christy  v.  Tancrcd,  7  M.  &  W.  127. 

(f/)  Harding  v.  Crcthorne,  1  Esp.  57.  (e)  Boot  v.  Wilson,  8  East,  311. 

(/ )  Thomas  v.  Cook,  2  B.  &  A.  119.  {g)  Burn  v.  Phelps,  1  Stark.  94. 

(//)  Grininian  v.  Lc^ge,  8  B.  &.  C.  324.'' 

(i)  Remnant  v.  Bremridge,  2  J.  B.  Moore,  94.  S.  C.  8  Taunt.  191.i 
{k)  Richardson  v.  Hall,  3  J.  B.  Moore,  307  ;  S.  C,  1  B.  &  B.  50.   8  Taunt.  45.k 
(/)  Anon.,  Woodf.  L.  &  Ten.  637,  4tli  ed.  by  Har.  &.  W. 


(1)  Abeel  v.  RadclifF,  13  .Johns.  297;  15  Id.  507. 

(2)  But  the  party  remains  liable  on  his  covenant ;  debt  however  will  not  lie.  Fletcher 
V.  M'Farlanc,  12  Mass.  46. 

(3)  A  notice  to  quit  by  a  purchaser  at  sheriff's  sale  of  the  landlord's  estate  is  a 
rescission  of  the  lease,  a  new  contract  must  be  proved;  mere  retention  of  possession  is 
insufficient.     Hemphill  v.  Tcvis,  4  VV.  &  S.  535. 

(4)  Because  that  would  be  to  determine  a  title  to  land  in  an  action  of  assumpsit 
Boston  V.  Blnncy,  11  Pick.  9.  There  must  cither  be  an  express  promise,  which  is  evi- 
dence of  a  tenancy,  to  which  case  tlic  action  is  confined,  or  an  entry  by  the  consent  of 
the  landlord,  from  which  a  tenancy  is  implied.  An  entry  under  a  contract  for  purchase 
will  not  authorise  such  an  imiilicd  promise.  Potc  v.  Leshcr,  1  Yeat.  578;  Henwood  v. 
Cheesmau,  3  S.  &  R.  500  ;  BancroR  v.  AVardcll,  13  Johns.  483.  Nor  can  it  be  sustained  by 
an  heir  or  administrator  where  a  lease  liad  been  made  without  authority  by  a  former  admin- 
istrator.     Boyd  v,  Sloan,  2  Bailey,  311. 

f4  Eng.  Com.  Law.  Rep.  101.     f36  Id.  301.    ^15  Id.  229.    '4  Id.  66.     M  Id.  14. 


186  crabb's  law  of  real  property. 

the  premises,  may  recover  in  this  action  the  rent  up  to  the  time  of  the 
demise  in  the  ejectment,  but  not  subsequently  ;(?7i)  so,  the  holding  must  be 
under  a  contract  of  demise,  therefore  where  a  parly  was  let  into  possession 
under  a  contract  to  purchase  and  the  vendor  failed  to  make  a  title,  it  was 
held  that  the  vendor  could  not  recover  for  use  and  occupation. (n) 

The  remedy  in  this  action  is  not  co-extensive  with  the  action  of  debt  for 
rent ;  the  statute  only  furnishes  an  easy  remedy  in  cases  of  actual  occupa- 
tion, leaving  other  more  complicated  cases  to  their  ordinary  remedy. (o) 
Debt  also  lies  for  use  and  occupation,  and  is  frequently  substituted  for  the 
old  action  of  debt  for  rent.  This  action  of  debt  however  is  independent  of 
the  statu te.(/j) 

*This  action  will  not  lie  for  the  use  of  premises  let  for  immoral 
['■252J  pu^.poses;(^)  but  it  will  lie  for  the  rent  of  a  Jewish  synagogue, 
there  being  no  express  law  prohibiting  such  an  establishment. (r) 


.  SECTION  V. 

ANNUITIES  OR  RENT  CHARGES. 

§  259.  An  annuity,  properly  so  called,  is  a  yearly  sum  of  money  granted 
to  another  in  fee-simple,  fee-tail,  for  life  or  years,  charging  the  person  of 
the  grantor  only.(l)  Where  however  it  is  made  payable  out  of  lands,  and 
the  land  is  charged,  as  it  usually  is,  with  distress  for  payment  of  the  same, 
it  is  called  a  rent^charge  ;  but  if  both  the  person  and  estate  be  made  liable, 
as  they  most  commonly  are,  then  it  is  generally  called  an  annuity. [s"^{\) 

A  corody  or  pension  was  an  allowance  or  a  right  belonging  to  the  crown 
to  receive  from  the  bishops  a  maintenance  for  his  chaplains  until  they 
obtained  a  benefice,  a  right  the  exercise  of  which  as  it  appears  has  fallen  into 
disuse. (n  A  corody  so  far  savoured  of  the  realty  that  a  house  or  land 
might  be  appendant  to  it.(?<) 

The  subject  of  annuities  embraces  the  following  matters  entitled  to  notice : 
1.  How  an  annuity  is  granted  or  created;  2.  The  estates  in  an  annuity  and 
the  incidents  thereto;  3.  Apportionment  of  an  annuity;  4.  Recovery  of  an 
annuity. 

(m)  Buck  V.  Wright,  1  T.  R.  378. 

(r/)  Kirtland  v.  Pounsett,  2  Taunt.  145 ;  but  sec  contra,  Howard  v.  Shaw,  8  M.  &  W. 
118,  and  other  cases,  Dig.  P.  iii.  tit.  Landlord  and  Tenant. 

(0)  Naish  V.  Tatlock,  2  H.  Bl.  319.  U,  Stroud  v.  Rogers,  6  T.  R.  62. 
(V)  Girardy  v.  Richardson,  i  Esp.  13;  Crisp  v.  Churcliill,  1  B.  Ac  P.  340. 
(»•)  Israel  v.  Simmons,  2  Stark.  3.')6.' 

(s)  Doct.  &  Stud.  Dial.  2,  230 ;  1  Inst.  1 44,  b. ;  Finch,  1 61 ;  Roll.  Abr.  226. 
(0  Harg.  Co.  Litt.  97,  a.  n.  (33.)  C«j  1  Inst.  49,  a. 

(1)  Horton  v.  Cook,  10  W.  127,  and  to  discharge  the  person  a  clear  intent  must  appear 
on  the  face  of  the  instrument ;  ''  to  be  paid,  had,  and  issuing  out  of  the  following  descrip- 
tion of  property"  is  not  sufficient.     Id, 

'3  Eng,  Cora.  Law  Reps.  380. 


ANNUITIES    OR    RENT    CHARGES. 


187 


*i.  ^t'm  an  ^nuuCtB  tna^  tr  fitantcti  cr  crcatrtr.  [*253] 


(j  260.  By  wliat  Conveyances, 
261.  Where  Annuity  is  not  Rent. 


()  262.   Annuities   under  the  53  G.  3,  c. 
141. 


§  260,  Where  an  annuity  is  made  chargeable  upon  the  lands  of  the 
grantor,  it  may  be  made,  as  a  rent-charge,  by  bargain  and  sale,  release,  or 
any  other  conveyance  now  in  use  (see  ante,  §  159,  as  to  how  a  rent-charge 
generally  may  be  created  ;)  but  if  a  man  grants  an  annuity  to  another,  and 
does  not  say  for  him  and  his  heirs,  this  is  determined  by  the  death  of  the 
grantor  ;(a.')  sed  secus  of  the  grant  of  rent  out  of  land,  or  a  grant  of  a  rent 
whereof  a  man  is  seised,  because  this  charges  the  land  and  an  annuity  charges 
the  person  only,  and  cannot  be  limited  to  the  heir  except  by  express  words.Tw) 

261,  In  some  cases  where  the  grant  of  a  rent  is  void  as  rent,  yet  it  may 
be  good  as  an  annuity;  as,  if  a  rent  be  granted  to  be  received  out  of  an  acre 
of  land  in  A,  and  the  grantor  has  no  lands  in  A.  yet  this  is  a  good  annuity  ;(z) 
so,  if  a  man  grants  a  rent  of  20/,  to  be  received  out  of  a  rent  of  40/,  this 
though  not  good  as  a  rent,  because  a  rent  cannot  issue  out  of  a  rent,  yet  is 
good  as  an  annuity. (a) 

262.  By  the  last  annuity  act,  53  G.  3,  c,  141,  s,  10,  annuities  or  rent- 
charges  given  by  will  or  marriage-settlement,  or  for  the  advancement  of  a 
child,  and  also  such  as  are  secured  upon  freehold,  or  copyhold,  or  customary 
lands  in  Great  Britain  or  Ireland,  or  in  any  of  Her  Majesty's  possessions 
beyond  the  seas,  of  equal  or  greater  value  than  the  annuity,  over  and 
*above  any  other  annuity,  are  excluded  from  the  provisions  of  that  ^o^^-- 
act,  the  object  of  which  is  to  impose  restrictions  on  the  granting  of  L  -■ 
annuities  in  consideration  of  loans  of  money.  See  further  Dig.  P.  ii.  tit. 
Annuities. 


H.  jEstatc  in  an  i^nituito,  antr  KncOirnt.s  thereto. 


§  262,  Annuity  in  Fee. 

How  not  entailable. 

Granted  by  the  Crown  in  Fee, 

No  Curtesy  or  Dower, 


§  263.  How  far  an  Hereditament 
Passes  by  Grant. 
Is  not  Assets. 
Is  assignable. 


§  263.  An  annuity  may  be  granted  in  fee,  that  is,  as  a  conditional  or 
qualified  fee,  but  it  cannot  be  entailed,  being  in  point  of  charge  strictly  per- 
sonal ;(//)  therefore  a  remainder  cannot  be  limited  over  of  it,  as  it  may  of  a 

(x^  2  H.  4 ;  Fitzh.  Ann.  pi.  16.  (y)  Br.  Charge,  pi.  54 ;  Vin.  Abr.  Annuity  (B.) 

(;:)  9  H.  6.  13.  63 ;  1  Inst.  116 ;  Newton  v.  Weeks,  All.  79. 

(«)  Br.  Annuity,  pi.  3,  citing  9  H.  G.  12 ;  Keilw.  161  b,  pi.  1.        (6}  1  Inst.  20,  a. 


?S5  cbabb's  law  of  rkai,  fropebtt. 

rent-charge. (c)  except  in  a  grant  by  the  queen  ;(rf)  but  when  granted  t/5  one 
and  the  heirs  of  his  body,  if  the  condition  is  performed  by  the  grantee's 
having  issue,  the  estate  becomes  absolute  in  him,  and  alienable  without 
restriction  ;  and  this  it  seems,  though  the  grantee  never  come  into  actual 
possession,  (e) 

An  annuity  iu  fee  granted  by  the  Crown  out  of  the  4^1.  per  cent,  duties 
payable  for  exports  and  imports  at  Barbadoes,  has  been  held  not  to  be  rent 
or  realty  but  merely  a  personal  inheritance, (/)  but,  being  settled  on  A.  and 
the  heirs  of  her  body,  was  a  fee-simple  conditional ;(/)  so,  an  annuity 
charged  upon  the  Post-Office,  until  a  certain  sum  should  be  paid,  in  order 
to  be  laid  out  in  land,  continues  to  be  mere  personalty,  and  as  such  passes 
rmo---]  t>y  arant  or  *trausfer  ;(^)  so,  there  can  be  no  curtesy  or  dower  of 
^       "  -'  an  annuity.(/A 

263.  Although  an  annuity  in  fee  is  an  hereditament  and  as  such  is  fotj-q 
feitable   for  treason,(i)  yet  being  onU'  personal  it  is  not  an   hereditaments 
within  the  Mortmain  Act  ;{k)  so,  before  the  abolition   of  Fines  and  Reco*^ 
veries'  Act,  it  was  not  the  subject  of  a  fine  or  recovery,  being  passed  by  mere^ 
grant  or  transfer;(/)  so,  an  annuity  is  not  within  the  Statute  of  Frauds  so  far 
as  it  affects  real  property  ;(m)   so,  it  is  not  assets  in   the  hands   of  the  heir, 
becaij«e  not  comprised  within  the  description  either  of  lands  or  tenaments; 
nor  iu  the  hands  of  executors,  because  its  inheritable  quality  prevents  it  from 
goin?  to  them.(n) 

Whether  an  annuity  was  assignable  or  grantable  over  was  for  some  time 
doubtful,  because  it  was  looked  upon  to  be  merely  a  chose  in  aclion,[o)  but 
it  has  since  been  ruled  otherwise ;(/j)  and  in  Gerard  v.  Boden,((7)  it  was 
said  that  an  annuity  was  not  so  much  in  the  personalty  as  hath  been  argued; 
so,  it  seems  too  that  naming  assigns  is  not  essential  to  the  making  of  an 
annuity  assignable. (r) 


III.  ^^jportioutnrnt  of  an  ^nnuito, 

^  264.  At  Common  Law.  |    §  274  By  Statute. 


§  264.^An  annuity  or  rent-charge,  like  a  rent-service,  was  formerly  not 
apportionable  ;   therefore  where  an  annuity  was  payable  at  Lady-Day  and 

(c)  Turner  v.  Turner,  1  B.  C.  C.  316  ;  S.  C,  Arabl.  776 ;  Weeks  v.  Peach,  2  Lutw.  1218. 
{d)  Sir  T.  Wroth's  case,  Plow.  475  ;  2  Voz.  ISl.         {e)  Turner  v.  Tiu-ner,  sup. 
{/)  E.  of  Strafford  v.  Buckley,  2  Vez.  170. 

(2-)  Holdernesse  (Lady)  v.  Carmarthen  fMarqni?,)  1  B.  C.  C.  37?;  see  also  Miles  v.Wil- 
Mams,  1  P.  Wms.  252 ;  Forth  v.  Chapman,  Id.  663.         (A)  1  Inst.  144.  b ;  Poph.  87. 
(f)  Ncvil's  case,  7  Co.  34  b.         {k)  19  E.  3,  Mortm. ;  1  Inst.  2  b. 
(Z)  Sheph.  Touchst.  11 ;  1  Vez.  391  ;  Piff.  97.  (m)  2  Vez.  170. 

(n)  Doct.  &,  Stud.  C.  30,  p.  97 ;  2  Vez.  179.  io)  Perk.  Sect.  101. 

(p)  Maund's  case,  7  Co.  28  b.        (3)  Metley,  80.        (r)  But  see  contra,  Perk.  sup. 


RECOVERY    OF    AN    ANNUITY  189 

Michaelmas,  and  annuitant  *died  on  Michaelmas-Day  after  sunset,  r-^o-el 
his  executors  should  have  the  last  quarter's  annuity  which  was  L  J 
payable  on  that  day  ;(s)  sed  sems  if  he  had  died  before  the  day  ;(s)  but  now 
by  the  4  &  5  W.  4,  c.  22,  Avhere  an  annuitant  dies  between  the  times  of 
payment,  the  executors  or  administrators  may  recover  a  portion  of  any 
annuity  or  annual  sum  for  so  much  of  the  time  as  has  elapsed  between  the 
last  payment  and  the  death.  See  further  Dig.  P.  ii.  tit.  Apportionment; 
and  as  to  rent-charges  under  the  Tithe  Commutation  Act,  see  ante,  §  141 
et  seq. 


IV.  iicco^crn  of  an  ^tnnuitn. 

§  266.  By  Distress.  |  ^266.  By  Writ  of  Annuity 


[*257] 


§  266.  An  annuity,  like  a  rent-charge,  when  granted  by  deed  is  recover- 
able by  distress  only  by  force  of  the  clause  in  the  deed  giving  that  power,(/) 
and  so  likewise  in  regard  to  the  remedy  by  entry  ;[u)  but  where  a  rent- 
charge  is  created  by  will,  although  a  .power  to  distrain  is  not  given  in 
express  terms,  yet  it  has  been  deemed  to  be  a  consequence  drawn  by  law 
from  a  rent-charge  ;(.r)  therefore  where  there  was  a  devise  of  lands  to  A. 
for  life,  remainder  to  B.  in  fee,  charged  with  the  payment  of  £20  a-year  to 
C.  during  her  life,  to  be  paid  by  A.  as  long  as  she  should  live,  and  after  her 
decease  to  be  paid  by  B. ;  the  annuity  was  held  to  be  a  charge  on  the  estate, 
and  that  C.  might  distrain  for  the  arrears,  although  the  will  contained  no 
power  of  distress. (i/)(l) 

An  annuity  which  is  only  to  charge  the  person  is  recoverable  by  Avhat  is 
called  a  writ  of  annuity,  that  is  an  action  of  debt  for  the  recovery  of  an 
annuit}-,  and  it  is  said  that  where  the  rent  is  behind  the  grantee  may  choose 
^whether  he  will  sue  a  writ  of  annuity  and  charging  the  person 
only  make  it  personal,  or  whether  he  will  distrain  for  the  rent 
behind,  and  so  charge  the  land  ;(2:)  but  he  cannot  have  both  the  remedies 
together,  for  if  he  have  a  writ  of  annuity  then  the  land  is  discharged, (2) 
but  if  he  distrain  for  the  rent  and  in  replevin  avow  the  taking  of  the 
distress,  then  is  the  land  discharged  ;  but  he  can  determine  his  election 
only  by  action  or  suit  in  a  court  of  record,  for  if  he  distrain  only,  he 
may  still  have  his  writ  of  annuity  or  personal  action. (~)  See  further 
as  toremedies  post,  Injuries  to  Things  Real  and  their  Remedies. 

(s)  Bellasis  v.  Cole,  1  P.  Wms.  170,  n.  (<)  See  ante,  §§151,  loQ. 

(u)  See  ante,  6  222.         (z)  Rodliam  v.  Berry,  Watkins's  Conv,  by  Cov.  243,  n.  (a). 

iy)  Buttery  v.  Robinson,  3  Bing.  3i)2  ;'  S.  C,  11  Moore,  262. 

Iz)  Litt.  sect  219  ;  1  Inst.  144,  b. 

(1)  Compare  Robinson  v.  Townsbend,  3  Gill  &  Johns.  424. 

(2)  Bosler  v.  Kiilin,  8  W.  &  S.  185. 

*Eng.  Com.  Law  Reps.  xiii.  20. 
November,  1846 13 


190  crabb'slawofrealproperty. 

SECTION  VI. 

RIGHT  OF  COMMON. 

§  267.  Under  this  head  may  be  considered: — 

1.  The  nature  of  a  Right  of  Common  and  its  different  kinds 

2.  Incidents  to  the  Right  of  Common. 

3.  Interests  of  the  Lord  and  the  Commoner. 

4.  Alienation  of  Common. 

5.  Apportionment  of  Common. 

6.  Extinguishment  of  Common. 

7.  Suspension  of  Common. 

8.  Revival  of  Common. 

9.  Injuries  to  the  Right  of  Common  and  their  Remedies. 


I.  2riie  liattirc  of  a  2^ig!it  of  (^ommoii,  anti  its  Diffcrrut  itintis. 

§  268.  Definition.  I  §  268.  Different  Kinds. 


268.  Common  imports  a  privilege  to  take  a  profit  in  common  with  many, 
J-.  -,  or,  in  other  words,  it  is  a  right  or  privilege  *which  one  or  more 
*-  -^  persons  claim,  to  take  or  use  some  part  of  that  v/hich  another 
man's  lands,  waters,  woods,  &c.,  naturally  produce,  without  having  an 
absolute  property  in  such  lands,  waters,  woods,  &c.(l)  It  is  an  incorporeal 
right,  which  lies  in  grant,  originally  commencing  on  some  agreement 
between  lords  and  tenants,  which  by  time  has  been  formed  into  prescription, 
and  continues  good,  although  there  be  no  deed  or  instrument  to  prove  the 
original  contract. (rt)  It  is  distinguished  as  to  the  ground  or  reason  of  the 
right  into  common  appendant,  common  appurtenant,  common  in  gross, 
common  pur  cause  de  vicinage  or  because  of  vicinage  ;  and  again,  according 
to  the  subject-matter,  into  common  of  pasture,  common  of  estovers,  common 
of  turbary,  and  common  of  piscary. 

Common  appendant  is  a  right  annexed  to  the  possession  of  land,  by  which 
the  owner  thereof  is  entitled  to  feed  his  beasts  or  take  wood,  &c.  Common 
appurtenant  does  not  arise  from  any  connexion  of  tenure,  but  must  be 
claimed  by  grant  or  prescription  ;  common  in  gross  is  a  right  not  annexed  to 
land,  but  annexed  to  the  person,  and  must  be  claimed  by  grant  or  prescrip- 
tion ;  and  common  because  of  vicinage  where  the  inhabitants  of  two  town- 
ships have  usually  intercommoned  with  each  other.  All  these  distinctions 
are  applicable  to  common  of  pasture,  but  to  common  of  estovers  and  the 
others  they  apply  only  in  a  partial  degree. 

(a)  4  Co.  37  ;  2  Inst.  65;  1  Vent.  387. 

(1)  Van  Rensselaer  v.  Radcliff,  10  Wend.  647.  Trustees  v.  Robinson,  12  Scrg.  & 
Rawlo,  33. 


§  2G9.  What  it  is. 


COMMON    OF    PASTURE. 

I.  CTommon  of  iiasturc. 

I      §  263.  Appendant  or  Appurtenant. 


191 


§  269.  Common  of  pasture,  which  is  by  distinction  called  simply  common, 
being  the  most  important  of  these  rights,  maybe  defined,  when  it  is  append- 
ant, to  be  a  right  belonging  to  the  owners  or  occupiers  of  arable  lands,  to 
put  upon  *tlie  lord's  waste,  or  upon  the  lands  of  other  persons  ^ 
within  the  same  manor,  commonable  beasts,  that  is,  beasts  that  serve  [  '^'^^J 
for  the  plough,  as  horses,  or  oxen  and  sheep,  or  kine,  to  manure  the  land. (6) 
For  the  most  part  the  property  in  the  soil  is  in  the  lord  of  the  manor,  but  it 
may  be  in  the  particular  tenants  of  common  fields. (c) 

Common  of  pasture  is  either  appendant  or  appurtenant. 


I.  Common  of  pasture  appendant. 


§  270.  Is  of  common  Rig-ht. 

Need  not  be  prescribed  for. 

Appendant  to  Land. 

Not  to  a  House. 

To  what  Land. 

Beasts  levant  and  couchant. 
27L  Claimed  for  Commonable  Beasts. 
272.  Number  limited  by  Usage. 


§  273.  Claimed  by  owners   of  Common 
Fields. 
Lord  and  Tenant 
Corporations. 
Infants,  &c. 

274.  Copyholders. 

275.  Inhabitants. 

276.  Different  Ways  of  User. 


§  270.  Common  of  pasture  appendant  is  of  common  right,  and  therefore 
a  man  need  not  prescribe  for  it  ;(rf)  this  kind  of  common  must  be  time  out 
mind,  for  it  cannot  now  be  created, (e)(1)  and  it  cannot  be  claimed  b}-  way 
of  custom.(y') 

Common  of  pasture  appendant  may  be  considered:— 

1.  What  it  is  appended  to. 

2.  For  what  cattle  it  may  be  claimed. 

3.  Who  may  have  it. 

4.  How  it  may  be  used. 

1.  What  it  is  appendant  to. 

This  common  is  regularly  appendant  to  arable  land,(g-)  not  to  a  house  ; 
therefore  a  claim  of  right  of  common  without  stint  as  annexed  to  an  ancient 

(i)  1  Inst.  122,  a.  (c)  Hickman  v.  Thornc,  2  Mod.  105. 

{d)  1  Inst.  122;  see  alsoHarg.  n.  (2),  122,  a.  (e)  1  Roll.  Abr.  396. 

(/)  6  Co.  59  ;  English  v.  Burrell,  2  Wils.  258.         {g)  Tyrringham's  case,  4  Co.  37  b. 


(1)  Watts  V.  Goffin,  11  Johns.  498. 


193  crabb's    law    of    real    property. 

j.^nnri-1  messuage  without  land  *cannot  as  such  exist  by  law  ;(/*)  yet  if 
L  -la  man  prescribe  for  common  appendant  to  a  cottage,  &c.,  it  will 
be  well,  for  it  has  a  curtilage,  &c.(i),  but  otherwise  where  there  is  no 
curtilage  or  land. (A:) 

It  must  be  regularly  appendant  to  arable  land  only,  yet  it  may  be  claimed 
as  appendant  to  a  manor  farm,  a  ploughland  or  a  carve  of  land,  though  it 
may  contain  pasture,  meadow,  and  wood,  for  it  shall  be  presumed  to  have 
been  all  originally  arable  land,  though  afterwards  converted  into  pasture, 
meadow,  and  wood  ;(A  but  it  cannot  be  appendant  to  land  which  is  improved 
within  the  time  of  memory  out  of  the  waste  of  the  lord.(m) 

2.  For  what  Cattle  it  may  be  churned. 

271.  This  may  be  considered  as  to  the  sort  of  cattle,  and  as  to  the  number 
of  cattle,  for  which  the  right  may  be  claimed. 

The  right  can  be  claimed  for  commonable  beasts  only,  that  is,  such  beasts 
as  will  serve  for  the  plough  or  to  manure  the  land,(n)  therefore,  if  a  man 
prescribe  for  common  appendant  for  all  cattle  it  shall  be  bad,(o)  and  hogs, 
goats,  geese,  or  the  like,  are  not  according  to  the  usage  of  the  common  •,(]A 
the  courts,  however,  will  intend,  that  the  beast  are  commonable  unless  the 
contrary  ap23ears.(//) 

Common  appendant  cannot  regularly  be  for  a  certain  number  of  beasts, 
but  for  such  only  as  are  levant  and  couchant  upon  the  land  to  which  the 
right  is  appendant,  and  the  number  of  cattle  allowed  to  be  levant  and 
-oRiT  couchant  shall  be  ascertained  by  the  number  of  cattle  which  can 
L  J  be  *maintained  on  the  land  by  its  own  produce  during  the 
winter,  (r) 

"  In  the  case  of  a  distress,  those  cattle  only  are  said  to  be  levant  and 
couchant  on  the  land,  which  have  been  there  long  enough  for  them  to  have 
lain  down  and  risen  up  again,  but  in  case  of  right  of  common  it  is  different, 
for  there  it  means  cattle  which  are  connected  with  the  land  in  respect  of 
which  common  is  claimed. "(s) 

The  term  common  sans  nomhre  does  not  mean  innumerable,  but  only 
indefinite,  not  certain. (/) 

273.  But  common  appendant  may  by  usage  be  limited  to  any  certain 

Qi)  Benson  v.  ChcsltT,  8  T.  R.  398. 

(i)  2  Inst.  73G ;  2  Brownl.  101  ;  Emerton  v.  Sclby,  2  Ld.  Raym.  1015 ;  S.  C,  6  Mod. 
114.  174  ;  see  also  Arlett  v.  Ellis,  9  B.  &,  C.  C71.» 

(A)  Scholes  V.  Hargrave,  5  T.  R.  46. 

{I)  2  Inst.  85.  474  ;  2  Brownl.  298  ;  Roll.  Abr.  396. 

(m)  5  Ass.  2,  cited  Bro.  Comnaons,  16.  (n)  2  Inst,  85. 

(0)  1  Roll.  Abr.  397. 

(p)  25  Ass.  pi.  8  ;  37  H.  6,  34  ;  Bro.  Com.  pi.  13  ;  Finch.  Law,  56. 

{if)  Standred  v.  Slioreditch,  Cro.  Jac.  580. 

(r)  Cole  V.  Foxman,  Noy,  30;  see  also  8  Co.  79  ;  13  Co.  66  ;  Norse  and  Webb's  case, 
Nov,  145 ;  Patrick  v.  Lowre,  2  Brownl.  101  ;  Dean  and  Chapter  of  Salisbury's  case,  W. 
Jo."282;  Sawyer's  case,  id.  281;  Jetfry  v.  Boys,  Hard.  117;  Leniel  v.  Harslop,  3  Kcb. 
66  ;  Benson  v."  Chester,  8  T.  R.  396. 

(s)  Per  Baylcy,  J.  Cheesman  v.  Hardham,  1  B.  &  A.  710. 

ll)  Bennett  v.  Reeve,  Willcs,  227. 

»Eng.  Com.  Law  Reps.  xvii.  472. 


COMMON    OF     PASTURE.  193 

number ;(«)  so  one  may  have  a  right  of  pasture  for  thirty  beasts  in  one 
place,  and  a  similar  right  for  ten  out  of  another,  both  places  being  in  the 
same  waste  •,{x\  so,  the  prescription  was  for  four  other  beasts,  three  horses, 
and  sixty  sheep  ;(y)  so,  where  there  are  several  owners  of  a  common  field, 
the  custom  may  be  that  they  shall  turn  out  cattle  in  proportion  to  the 
extent,  and  not  to  the  produce,  of  the  land  in  respect  of  which  the  right  is 
claimed,(2)  see  further  as  to  user  of  the  common  infra,  §  37G. 

3.  Tflto  may  have  it. 

273.  Where  there  are  several  owners  of  common  fields  who  have  a  right 
of  inlercommoning,  the  extent  of  their  right  is  regulated  by  custom. («) 

Where  there  is  lord  and  tenant,  the  lord  has  of  course  in  *the  p^-gG''! 
first  instance  a  right  to  common  in  his  own  tenancy,(6)  for  the  L 
benefit  is  mutual  between  lord  and  tenant. (c)  The  tenants  here  understood 
are  such  as  are  tenants  of  all  waste  lands  in  the  manor,  where  the  lord  claims 
an  immediate  ownership  in  the  soil  so  a  matter  of  right,  not  tenants  holding 
certain  lands  under  him,  for  a  custom,  that  the  lord  should  have  common  in 
the  lands  of  such  tenants  is  bad. (J) 

A  man  may,  however,  have  two  distinct  rights  of  common  in  two  distinct 
wastes  of  different  manors. (e) 

Ecclesiastical  corporations,  both  sole  and  aggregate,  may  have  common 
appendant,  as  a  dean  and  chapter ;(/)  so,  an  abbot  or  parson  :(i?-)  80,%- 
corporations  ;(/?-)  so,  infants,  executors,  assignees,  husbands  in  right  of  their 
wives,  and  other  representative  persons,  may  also  have  this  right  vested  in 
them  ;  and  as  an  alien  may  take  a  lease,  so  he  may  enjoy  a  right  of  common 
connected  with  the  land  he  occupies  under  that  lease. (i) 

274.  Copyholders  can  claim  common  by  the  custom  of  the  manor  only  ;(/i) 
but  no  one  can  claim  a  right  of  this  nature  except  it  be  in  respect  of  land, 
and  he  must  in  the  first  instance  shew  that  he  derives  title  to  the  enjoyment 
of  it  through  the  original  owners  of  such  land  :(/)  and  where  a  copyholder 
has  common  in  a  Avaste,  without  the  manor  of  which  his  copyhold  Avas 
parcel,  it  was  held  that  he  had  it  annexed  to  the  land,  and  not  to  his  custom- 
ary estate,  and  he  must,  by  reason  of  the  weakness  of  his  estate,  prescribe 
in  the  que  estate,  that  is,  in  the  name  of  his  lord  ;(?n)  and  after  *en-  r^gesl 
franchisement,  the  feoffee  must  prescribe  in  a  que  estate  of  his  lord,  L  "     -' 

(«)  17  E.  26;  Trulock  v.  Ri^rsby,  Yclv.  185;  Mills  v.  Ward,  1  Vent.  92;  Chandler  v. 
Mclland,  2  Keb.  491. 

(x)  17  E.  3.  34  ;  1  Roll.  Abr.  397.  (y)  Mors  v.  Webbe,  1  Brownl.  180. 

(z)  Cheesman  v.  Hardham,  1  B.  ife  A.  706.  (a)  Chccsnian  v.  Ilardbam,  sup. 

(/;)  2  Inst.  85.  474.  (c)  Mors  v.  Wcbbc,  2  Brownl.  298  ;  sec  also  2  Mod.  275. 

((/)  White  V.  Sayer,  Palm.  211.     See  also  Mors  v.  Webbe,  sup. 

(e)  Hollingshcad  v.  Walton,  7  East,  485. 

(  /)  Dean  and  Cliapter  of  Salisbury's  case,  V/.  Jo.  282  ;  Ely  (Dean,  (fee.)  v.  Warren,  2 
Atk.  189.  iiT)  17  E.  3.  26 ;  Godb.  4. 

(/()  Mcllcr  V.  Walker,  2  Saund. ;  Stables  v.  Melton,  2  Lev.  246.  (i)  Vaugh.  190. 

(k)  CrowtJier  v.  Oldfield,  2  Ld.  Raym.  1225 ;  Fisher  v.  Wren,  3  Mod.  250. 

(/)  Crowtlier  v.  Oldfield,  sup. 

(Hi)  Foistou  V.  Crachrode,  4  Co.  32  ;  S.  V.,  Barwick  v.  Matthews,  5  Taunt.  365  ;''  S.  C, 
1  Marsh.  50. 

bEng.  Com.  Law  Reps.  i.  135. 


194  crabb's  law    of   real  froperty. 

for  himself  and  his  customary  tenants,  till  the  time  of  the  enfranchisement, 
and  since  that  time  for  the  feoffee  and  his  heirs  as  appurtenant  to  the 
enfranchised  tenement. (n) 

275.  Inhabitants  as  such,  without  any  further  title  to  common,  cannot 
prescribe  for  common,  as  they  are  not  fixed  persons,  and  the  right  which  they 
claim  is  permanent  in  its  natui'e,  being  attached  to  land  ;(o)  therefore,  when 
the  inhabitants  of  the  city  of  Coventry  claimed  a  right  of  common  for  beasts, 
without  saying  that  they  were  levant  and  couchcmt,  the  plea  was  held 
bad  -Jp)  but  it  would  have  been  otherwise,  if  they  had  stated  that  the  beasts 
were  levant  and  couchant  ;{q)  so,  where  a  prescription  was  pleaded  that 
every  householder,  time  out  of  mind,  ought  to  have  common  in  a  certain 
vill  ;  it  was  resolved  that  the  claim,  being  uncertain  and  indefinite,  could 
not  be  allowed,(r)  and  the  same  rule  applies  so  much  the  more  to  mere  occu- 
piers, (s)  Houses  newly  erected  can  have  no  right  of  common  when  claimed 
by  prescript! on. (^) 

4.  How  it  may  he  used. 

276.  The  kind  and  number  of  cattle  for  which  common  appendant  may 
be  claimed  has  been  already  stated,  see  supra,  §  271. 

The  user  of  common  may  be  limited  as  to  time  in  different  ways.  As  a 
rule,  common  appendant  shall  be  for  the  whole  year  or  for  a  limited  time,(t() 
therefore,  there  may  be  a  prescription  for  common  after  the  corn  is  cut  and 
_  ^carried,  until  the  land  is  resown  ;{x'j  so,  to  have  common  in  like 
L  -^  manner  if  the  land  be  sown  with  the  consent  of  the  commoners  •,{y) 
so,  likewise  to  have  common  appendant  after  the  corn  was  cut  and  carried 
during  two  successive  years,  and  then  throughout  the  year  during  the 
third  ;[z)  and  so  of  other  prescriptions  of  like  kind. 

As  a  rule,  a  commoner  cannot  agist  the  cattle  of  a  stranger  •,{a)  sed  secitf}, 
if  he  have  no  beasts  of  his  own  to  manure  the  land  ;(^)  so,  a  lord  cannot  agist 
a  stranger's  beasts  without  a  prescription  for  so  doing.(c)  See  further  as 
to  the  rights  of  the  lord  and  the  tenant,  post,  §  314  et  seq, ;  also  as  to  com- 
monable beasts,  ante,  §  271. 

By  the  32  H.  8,  c.  15,  various  provisions  are  made  against  putting  infect- 
ed cattle  to  pasture  on  commons,  and  by  13  G.  3,  c.  8,  provisions  are  made 
to  regulate  the  time  and  manner  of  depasturing  common  pastures.  As  to 
approvement  and  planting  trees  on  commons,  see  Dig.  P.  ii.  tit.  Commons. 

(n)  Barwick  v.  Matthews,  5  Taunt.  365  ;■=  S.  C,  1  Marsh.  50. 

(0)  Gatcwood's  case,  6  Rep.  59.  (p)  15  E.  4.  32.  (9)  Id.  29. 

(r)  Ordcway  v.  Ornie,  1  Bnlst.  183  ;  see  also  S.  P.,  Tinnery  v.  Fisher,  cited  2  Balst.  87. 

(s)  Entrhsh  V.  BurncU,  2  Wils.  258.  (0  Sav.  81. 

(u)  1  Roll.  Abr.  396.  (x)  Trulock  v.  Rigshy,  Yelv.  185  ;  S.  C,  1  Brownl.  189. 

(?/)  Hawkes  v.  Molineux,  1  Leon.  73. 

iz)  Walter  V.  Chauncr,  1  Vcntr.  21 ;  Chandler  v.  Melland,  2  Keb.  491. 

(a)  22  Ass.  pi.  84 ;  ]  1  H.  6.  22,  cited  in  Bro.  Com.  pi.  5. 

Ih)  45  E.  3.  26,  cited  Bro.  Com.  p!.  5 ;  see  also  F.  N.  B.  180,  B. ;  see  also  Manneton  v. 
Trcvilian,  2  Show.  328;  S.  C,  nom.  Slolliton  v.  Trevilian,  Skin.  137  ;  Rumscy  v.  Raw- 
son,  1  Vent.  18 ;  S.  C,  2  Keb.  410  ;  S.  C,  T.  Raym.  171. 

(c)  Smith  V.  Feverell,  2  Mod.  6. 

<-'Eng.  Com.  Law  Reps.  i.  135. 


COMMON     OF     PASTURE. 


195 


II.  Common  of  pasture  appurtenant. 


^  277.  Definition. 

Distinction  between  Common  appcn- 
and  appurtenant. 

278.  Annexed  to  what  lyand. 

279.  (Claimed  for  what  Beasts. 

280.  Nunibcr  of  Cattle. 


2S1.  Times  of  User. 

282.  Parties  ehiiniing  Burgages. 
Inhabitants. 

Freemen. 

283.  User  of  the  Common. 


§  277.  Common  appurtenant  is  a  rioht  of  feeding  one's  beasts  on  the 
land  of  another,  which. is  founded  on  a  grant  or  a  prescription  which  sup- 
poses a  grant. 

*It  is  dih;tinguished  from  common  appendant  in  the  four  following  p^.^^K-i 
particulars  : — 1.  It  is  against  common  right,  and  must  therefore  be  L  J 
prescribed  for,  if  claimed  by  prescription  ;(ff)  sed  secus,  where  there  is  a  grant 
to  show;(e)  and  a  user  for  fifty  years  has  been  held  to  be  evidence  for  a 
jury  to  presume  a  grant. (/)  But  being  a  profit  ci  prendre  in  the  soil  of 
another,  it  cannot  be  claimed  by  custoin.(o-j 

278.  In  the  next  place  it  may  be  claimed  as  annexed  to  any  kind  of  land 
(see  ante,  §  270,)  as  not  arising  from  any  tenure  ;(/j)  it  may  be  claimed 
therefore  in  respect  of  lands,  in  another  lordship  than  that  in  which  the 
waste  is  situated  \{i)  but  it  cannot  be  claimed  as  appurtenant  to  a  house 
without  anjr  land;(A')  but  it  is  not  necessary  in  pleading  to  state  it  as  annex- 
ed to  land  eo  nomine,  for  if  laid  as  appurtenant  to  a  thing,  Avhich,  in  intend- 
ment of  Irw, prrmd  facie  comprehends  land,  it  is  sufficient,  as  where  it  is 
laid  appurtenant  to  a  messuage, (/j  or  to  a  cottage  ;(?n)  for  the  law,  upon 
demurrer,  or  after  verdict,  will  presume  that  there  is  at  least  a  curtilage 
belonging  thereto,  on  which  the  cattle  may  be  levant  and  couchant.{ii)  In 
this  point  the  relaxation  of  the  rule  applies  more  properly  to  common  appur- 
tenant than  to  common  appendant,  although  in  the  cases  cited  the  two  kinds 
of  common  seem  to  be  confounded.  But  see  Tyrringham's  case,  sup. ;  see 
also  ante,  §  270. 

*279.  Again,  it  maj^be  claimed  for  any  kind  of  cattle,  not  merely  pj(opp-i 
!or  commonable  beasts  or  beasts  of  the  plough, (o)  but  for  every  kind  L  J 
t)f  beast  not  commonable,  as  hogs,  goats,  geese,  &c.[pj 


(o)  Tyrringham's  case,  4  Co.  37. 

(c)  Mollition  v.  Trevilian,  2  Show.  328  ;  Skin.  137. 

''  f)  Cowlan  V.  Slack,  15  East,  108;  see  also  Tyrringham's  case,  sup.;  Pretty  v.  Butler, 
2  Sid.  87. 

(o-)  Gatewcod's  case,  6  Co.  5D  ;  Grim.'^tead  v.  Marlowe,  4  T.  R.  717  ;  Hardy  v.  Holli- 
day,  cited  4  T.  R.  717.  (//)  37  H.  6.  34  ;  15  E.  4.  33. 

,'t)  F.  N.  B.  181,  n. ;  Sacheverell  v.  Porter,  Cro.  Car.  482  ;  S.  C,  3  W.  Jo.  396 ;  Clark- 
^^on  V.  Woodhcusc,  5  T.  R.  412. 

(A-)  Seholcs  V.  Hargreaves,  5  T.  R.  46  ;  Bull.  N.  P.  59  ;  Chester  v.  Benson,  8  T.  R.  3lfi. 

{I)  Patrick  V.  Lowre,  2  Brownl.  101;  Hockley  v.  Lamb,  1  Ld.  Ray  in.  726;  but  see 
<;ontra,  Nortli  v.  Coe,  Vaugli.  253. 

(m)  Co.  Ent.  649  a;  Emerton  v.  Selby,  2  Ld.  Raym.  1015. 

in)  Seamier  v.  Jolmson,  T.  Jo.  227.  (>0  See  ante,  §  276. 

ip)  37  H.  6.  34  b  ;  15  E.  4.  33  ;  1  Inst.  122,  a ;  Roll.  Abr.  402. 


196        crabb's  law  of  real  property. 

Last]}%  it  may  commence  by  grant  within  time  of  memory, (y)  and  may 
be  severed  from  the  land  to  which  it  is  appurtenant. (r) 

280.  In  other  respects  these  two  kinds  of  common  agree.  The  number 
of  cattle  may  be  limited  or  unlimited. (s)  When  common  appurtenant  is 
granted  for  an  unlimited  number  of  cattle,  the  measure  of  profit  which  the 
commoner  may  enjoy  is  to  be  regulated  by  the  number  of  cattle  levant  and 
couchant  upon  the-  land  entitled  to  common,  as  in  the  case  of  common  appen- 
dant 'lit)  and  where  a  man  claims  common  for  all  commonable  cattle  but 
does  not  say  levant  and  couchant,  this  shall  be  intended  commons  sans 
nombre,  according  to  the  words  ;(w)  but  although  this  prescription  be  bad  on 
demurrer  yet  held  to  be  cured  after  verdict. (a;) 

281.  There  is  no  less  diversity  in  the  periods  for  using  common  appur- 
tenant than  for  common  appendant ;  a  man  may  prescribe  for  it  generally 
w^ithout  mentioning  any  particular  season  of  the  year ;(?/)  or  the  prescrip- 
tion may  be  for  every  year  from  the  time  of  cutting  and  carrying  away  until 

^  -^  the  field  was  re-sown  -,(2:)  and  where  such  is  the  prescription,  and  the 
L  -^  land  was  not  sown  for  seven  years,  held  *that  cattle  might  feed  until 
it  was  sown  again ;(«)  so,  a  particular  place  in  a  waste  or  common  may  be 
marked  out  for  a  common  appurtenant. (6) 

282.  Burgagers  in  a  borough  may  have  common  appurtenant  to  their 
burgages  by  prescription  ;(c)  so,  for  beasts  levant  and  couchant  in  their 
vill ;((/)  but  an  inhabitant  of  a  town  shall  not  have  this  common  by  reason 
of  his  commorancy  in  an  ancient  messuage,  not  having  any  interest  in  the 
house,  for  this  is  neither  common  appendant  nor  appurtenant,  or  in  gross  or 
because  of  vicarage,  for  common  such  as  this  would  be  transitory  and  uncer- 
tain ;(c)  yet  he  may  have  it  in  a  place  where  such  right  attaches,  provided 
the  cattle  be  levant  and  couchant ;(/)  and  so  it  seems  that  in  general  inhabi- 
tants may  claim  by  custom  although  they  cannot  prescribe  ;  sed  querse.{g) 

Freemen  may  prescribe  in  respect  of  ancient  messsuages,  for  they  may 
be  taken  to  include  land  on  which  their  cattle  may  be  levant  or  couchant.iji) 
Bo,  it  seems  that  a  copyholder  may  prescribe  for  common  for  a  limited  num- 
ler  of  cattle  in  land  parcel  of  a  manor,  and  this  will  be  common  app\irtenant, 
and  being  a  copyhold  grant,  it  still  remained  attached  to  the  manor,  even 
during  the  time  of  its  being  enjoyed  by  the  copyholder, (i) 

(7)  Sacheverell  v.  Porter,  sup. ;  Pretty  v.  Butler,  2  Sid.  87. 

(?)  26  H.  8.  4,  cited  Bro.  Com.,  pi.  1 ;  Leniel  v.  Harslop,  3  Keb.  6G. 

(s)  F.  N.  B.  181,  n.;  1  Inst.  122,  a ;  Day  v.  Spooner,  4  Vin.  Abr.  591. 

(0  See  ante,  §  271. 

(u)  Cheedle  v.  Mellor,  1  Sid.  313  ;  S.  C,  nom.  Chcedley  v.  Miller,  1  Lev.  196;  S.  C,  2 
Keb.  108 ;  see  also  Jenkin  v.  Vivian,  Popli.  201  ;   Hopkins  v.  Robinson,  1  Mod.  74. 

(x)  1  Saund.  227 ;  Stoncsby  v.  Musscnden,  2  Sid.  87. 

(y)  2.5  Ass.  pi.  8,  cited  Bro.  Com.  41;  1  Roll.  Abr.  401. 

(z)  Musgrave  v.  Cave,  Willes,  319.  (a)  Walker  v.  Miller,  1  Freem.  23. 

(h)  Musoravc  v.  Cave,  sup. 

(c;  IMiller  v.  Walker,  2  Sid.  462.  (J)  Cheedle  v.  Mellor,  sup. 

(e)  Gatewood's  case,  6  Co.  60  ;  Fowler  v.  Dale,  Cro.  El.  362;  see  also  Hob.  86  ;  Foxnll 
V.  Venablcs,  2  Leon.  45  ;  S.  C,  1  And.  152  ;  Godb.  97  ;  Smith  v.  Gatewood,  Cro.  Jac.  152, 

(  f)  15  E.  4.  32,  ciied  Bro.  Com.  pi.  8.         (^)  Weekly  v.  Wildman,  1  Ld.  Raym.  406. 

(h)  Hinckes  v.  Gierke,  2  Show.  78  ;  S.  C,  2  Lev.  252. 

(j)   Musgrave  v.  Cave,  Willes,  319  ;  see  also  Stamford  v.  Burgess,  Sheph.  Abr.  381. 


COMMON    OF    PAST  tT  RE. 


197 


283.  As  in  the  case  of  common  appendant, (A;)  so  in  this  kind  of  common 
a  commoner  as  a  rule  cannot  agist  the  cattle  of  a  stranger,(/)  yet  he  may- 
borrow  the  cattle  of  *another  person  for  the  purpose  of  manuring  the  ^ 


land,  and  with  these  he  may  use  the  common,(?n)  for  he  has  thereby 


[*2G8] 


a  special  property  in  them  ;(n)  so,  he  may  use  the  common  with  cattle  which 
are  for  his  household  ;(o)  but  not  with  any  which  are  kept  for  sale  ;(o)  and 
it  seems  that  the  lord,  who  is  the  owner  of  the  soil,  may  license  a  stranger 
to  put  in  his  cattle,  it  being  no  wrong  to  him,  and  it  cannot  be  a  surcharg- 
ing ;(^j)  but  cannot  exercise  his  right  in  so  unlimited  a  manner  as  not  to 
leave  sufficiency  of  pasture  for  the  commoner  ;(y)  and  so,  it  seems  on  the 
other  hand  that  a  custom  that  the  copyholders  should  have  the  sole  and 
several  pasture  to  the  exclusion  of  the  lord  is  gooi;(fj)  but  see  further  as  to 
disturbance  of  common,  post,  §  348. 


III.  Common  of  pasture  in  gross. 


284.  Wliatitis. 

Grants  of  Common  in  Gross. 

285.  Wlio  may  take. 
Not  Inhabitants. 

286.  With  what  kind  of  Cattle  it  may  be 

used. 


237.  With  what  number. 
Common  sans  nonibre. 

238.  Wliere  Common  may  be  taken. 
289.  Witli  whose  Cattle  it  may  be  used. 


§  284.  Common  in  gross  is  so  called  because  it  does  not  appertain  to  any 
land ;  and  it  must  be  by  grant  or  prescription,  which  supposes  a  grant ;  and 
it  may,  like  common  appurtenant,  commence  at  this  day  by  writing,  that  is 
by  grant  ;(r)  therefore  if  one  grant  so  many  acres  of  land,  with  as  much 
common  as  belongs  to  his  oxgang  of  land  in  a  certain  place,  this  is  a  good 
grant  of  common  in  gross  ;(s)  so,  if  he  grants  an  assart  with  all  the  com- 
mon that  pertains  to  *one  bovate  of  land  ;(s)  so,  if  a  man  grants  com-  pssofiO'l 
mon  to  the  mayor  and  burgesses  for  all  their  cattle  ;(/)  and  this  right  L 
may  be  vested  in  a  man  and  his  heirs  by  deed,  although  he  have  not  a  foot 
of  land  in  the  place,  for  there  is  no  connexion  of  tenure. (?/) 

285.  This  kind  of  common  may  be  prescribed  for  by  the  maj^or  and  bur- 
gesses of  a  corporation  ;(x)  but  although  the  inhabitants  of  ancient  mes- 
suages in  towns  may  prescribe  for  common  as  appurtenant  to  their  houses  ;(?/) 
yet  inhabitants  as  such  cannot  prescribe  for  common  in  gross,  therefore  where 
a  man  built  a  new  house  in  such  ancient  town  he  could  not  prescribe  for 
common  by  reason  of  such  residency, (?/)  unless  such  new  house  had  been 

(li)  Sec  ante,  §  276. 

(/)  30  E.  3.  28,  cited  1  Roll.  Abr.  401 ;  Molleton  v.  Trevilian,  Skin.  137 ;  S.  C,  2 
Lev.  2.  (w)  14  H.  6.  6  b,  cited  Bro.  Com.,  pi.  14  ;  1  Roll.  Abr.  401. 

(n)  Manneton  v.  Trevilian,  2  Show.  328;  S.  C,  nom.  Molleton  v.  Trevilian,  sup. 

(o)  14  H.  6.  6,  c.  (;))  Hoskins  v.  Robins,  2  Saund.  324  ;  but  see  ante,  ^  276. 

(7)  Smith  V.  Fcverell,  2  Mod.  6.  (r)  1  Inst.  122,  a.;  Tvrringham's  ease,  4  Co.  33; 
2  Inst.  477.  is)  F.  N.  B.  130,  N.  (n.) 

(t)  Stables  V.  Mcllor,  2  Lev.  246;  sec  also  Mellon  v.  Spateman,  1  Saund.  343. 

(m)  2  Com.  34.  (x)  Mellor  v.  Spateman,  sup. 

ly)  Costard  and  W  ingfield's  case,  2  Leon.  44. 


198  -  CRABb's    LAW     OF     REAL     PROPERTY. 

built  upon  the  site  of  the  old  house  ;{z)  so,  lessees  cannot  prescribe  by  reason  of 
the  imbecility  of  theirestate  ;(a)  so,  not  the  queen  lest  she  should  surcharge. (6) 

286.  A  license  to  feed  may  be  granted  so  as  to  include  all  manner  of  cat- 
tle, but  a  general  license  to  feed  is  confined  to  commonable  beasts  only,  yet 
such  a  license  to  feed  for  a  particular  period  may  include  hogs  and  other 
beasts. (c) 

287.  This  kind  of  common  may  be  granted  either  for  a  limited  or 
unlimited  number  ;  in  the  former  case  it  must  be  enjoyed  according  to  the 
terms  of  the  grant ;  but  in  the  case  of  common  for  an  unlimited  number,  or 
common  sans  nomhre,  as  it  is  termed,  there  has  been  some  diversity  of 
opinion.  It  has  been  long  settled  that  this  term  as  applied  to  common 
r*97m  *'ipP'^"tl^'^t  Js  restricted  to  cattle  levant  and  couchant  ;(fZ)  so,  in 
L  -I  regard  to  common  appurtenant, (e)  as  a  prescription  for  all  cattle 
commonable  to  depasture  in  the  land  of  another  is  bad,  for  a  man  cannot 
have  common  suns  nomhre  appurtenant  to  land,  otherwise  unnumbered 
beasts  might  be  put  in  at  pleasure  ;(e)  and  in  the  absence  of  any  contract,  it 
has  been  held  that  no  common  is  recognised  by  the  law,  but  what  is  mea- 
sured by  levancy  and  couchancy ;(/)  and  so  in  the  case  of  a  grant,  where 
the  matter  has  been  much  discussed,  the  better  opinion  appears  to  be  that  a 
common  in  gross  sa?is  iiombi'e,  may  be  granted  to  an  individual,  provided  he 
leaves  sufficient  for  the  lord  ;(«•)  or,  as  Lord  Coke  saj'-s,  "  provided  he  leave 
sufficient  for  the  tenant  to  feed  there  ;(/i)"  and  it  seems  to  be  admitted  that 
although  a  corporation  may  prescribe  for  a  common  in  gross,  yet  they  may 
not  prescribe  for  a  common  in  gross  sans  nombre.ii') 

288.  The  place  where  common  in  gross  may  be  taken  ought  to  be  speci- 
fied in  the  grant,  otherwise  it  will  be  void  ;(_/)  but  if  stated  generally,  it  is 
sufficient,  as  Vv'here  A.  grants  lands  to  B.,  with  common  in  all  his  lands,  the 
grantee  shall  have  common  in  all  the  laiids  which  A.  has  at  the  time  ;(it) 
so,  where  common  is  granted  for  twenty  beasts  in  the  manor  of  D.,  the 
grantee  shall  have  common  in  every  part  of  the  manor  he  chooses, (/)  but  not 
in  the  grantor's  garden  or  corn,(m)  unless  the  grant  be,  wherever  the  grantor 
puts  his  cattle,  and  the  grantor  puts  his  cattle  in  his  corn,(m)  see  further, 
Woolr.  L.  Com.  c.  7. 

r*271~l  ^®^'  ■'■''  ^^^^  decided  in  an  early  case,  that  a  commoner  *entitled 
*-  -^  to  common  in  gross  could  not  agist  the  beasts  of  others  in  his  common, 
therefore  in  replevin  where  the  plaintiff's  ancestor  died  seised  of  such  com- 
mon, and  the  plaintiff  commanded  his  tenants  to  put  in  their  beasts  and  use 
the  common  in  his  name,  it  was  held,  that  the  lord  of  the  manor  was  justified 

{z)  lb. ;  see  also  15  E.  4.  29, 33,  cited  Bro.  Com.  pi.  8. 

(«)  V.  Stringer,  Cro.  Car.  599.  (ft)  27  H.  8, 10  b. 

(c)  Smith  V.  Feverell,  2  Mod.  7;  S.  C,  1  Frce.m.  190. 

id)  Bennett  v.  Reeve,  Willes,  232.  (e)  Sa3^c's  case,  March,  83. 

( 0  Clicster  V.  Benson,  8  T.  R.  396.  '     (^)  12  H.  8, 2. 

(A)  1  Inst.  122. 

(i)  Mellor  v.  Spateman,  1  Saund.  343;  sec  also  22  Ass.  pl.3G;  Weekly  v.  Wildman,  1 
Ld.  Raym.  405.  ( /)  9  H.  6,  36  ;  F.  N.  B.  1 80,  G. 

{k)  F.  N.  B.  ISO,  G.     il)  9  H.  3,  6,  cited  iiiBro,  Grants,  pi.  5  ;  and  in  1  Roll.  Abr.  404. 
(/«)  Sjnith  V.  Feverell,  sup. 


COMMON    OF    PASTURE    BECAUSE     OF    VICINAGE. 


199 


in  seizing  the  beasts  ;(n)  sed  secus,  where  the  grantor  of  the  common  gives 
assent  to  the  putting  in  of  the  beasts,  the  grantee  not  having  any  beasts  of 
his  own  ;(o)  so,  it  seems  that  a  man  having  a  common  in  gross  for  a  certain 
number  of  cattle  may  put  in  the  cattle  of  a  stranger  and  use  the  common 
with  them.(p) 


IV    Common  of  pasture  because  of  vicinage. 


£91.  Wliatitis. 

291.  Not  properly  a  Right. 

Inclosure  against  such  Common. 


292.  Time  of  tTking  this  Common. 

User  of  tiiis  Common. 
233.  Common  of  Shack. 


§  290.  This  kind  of  common  is  where  the  inhabitants  of  one  or  more 
townships  or  vills  lying  contiguous,  or  the  tenant  of  two  or  more  manors  ad- 
joining to  each  other,  have  been  accustomed  to  intercommon  time  out  of 
mind,  the  commonable  beasts  of  either  straying  into  the  other's  lands  with- 
out hindrance,  and  this  is  common  appendant  only  in  as  much  as  it  must 
be  bj'-  prescription. ((^) 

Common  by  vicinage  can  exist  only  between  two  townships  that  lie  con- 
tiguous, and  not  where  there  is  intermediate  *land  ;(r)  and  he  who  ^  ^  -, 
has  such  common  may  not  put  his  cattle  into  the  land  of  the  other,  L  ""  "J 
but  he  ought  to  put  them  in  the  land  where  he  has  common,  and  if  they 
stray  they  are  excused  of  trespass  on  account  of  the  ancient  usage  and  to 
save  suits  ;(s)  but  such  right  of  common  exists  over  open  downs  adjoining 
the  common. (^) 

291.  This  kind  of  common  is  not  properly  a  right  like  the  other  kinds, 
though  usually  reckoned  as  such,  it  being  but  an  excuse  for  a  trespass  ;(?<) 
it  is  at  best  but  a  permissive. vight,(a?)  arising  from  neighbourhood  where 
boundaries  were  not  easily  established ;(?/)  so,  this  common  not  being  pro- 
perly a  right  does  not  prevent  inclosure  ;(r)  therefore  not  only  the  lord  of 
one  manor  where  a  common  of  vicinage  has  existed  time  out  of  mind  may 
inclose  against  the  lord  of  another,(o)  but  also  the  proprietors  of  common 
fields  may  exclude  each  other  if  such  has  been  the  custom  ;(b)  and  where 
an  inclosure  has  once  been  made,  the  common  is  gone  ;(c)  but  to  take 

(n)  45  E.  3,  25  b.  cited  in  Bro.  C^m.  i)l.  40  ;  also  in  Fitzh.  Ass.  pi.  225  :  also  in  1  Roll. 
Abr.  402 ;  see  also  S.  P.,  11  H.  7, 13.,  and  F.  N.  B.  180. 

(0)  45  E.  3,  26,  cited  in  Bro.  Com.,  pi.  5;  also  in  1  Roll.  Ahr.  402. 

ip)  11  H.  G,  22  b.,  cited  in  Bro  Com.  pi.  47  ;  also  in  Fitz.Com.,  pi.  3. 

{(()  Tyrringliam's  case,  4  Co.  38. 

(r)  Dy.  47  b. ;  Bromfield  v.  Kirhor,  11  Mod.  72.       (s)  Tyrringham's  case,  4  Co.  38. 

(0  Heath  v.  Elliott,  4  Bing.  N.  S.  388  ;•  S.  C,  G  Pcott,  172. 

(u)  Musgravc  v.  Cave,  Willes,  322;  and  see  Tvrringliam's  case,  sun. 

{x)  2  Com.  34.  (y)  Bract.  222  ;  Britt.  144 ;  Flct.  254. 

{x-.  Musgrave  v.  Cave,  Sup.  (a)  1  Inst.  122,  a. 

{h)  Hickman  v.  Tliorne,  2  Mod.  104 ;  S.  C,  1  Freem.  210  ;  see  also  R.  P.,  Bromficld  v. 
Kirber,  sup ;  Dean  v.  Clayton,  7  Taunt.  489  ;    S.  C,  1  Moore,  214  ;  2  Marsh.  577. 

(c)  1  Roll.  Abr.  399. 

■«Eng.  Com.  Law  Reps,  xxxiii.  336.         ^Id.  ii.  183. 


200 


CRABBS  LAW  OF  REAL  PROPERTY. 


away  the  claim  of  such  common  there  must  be  a  complete  inclosurc,  so  as  to 
prevent  cattle  from  straying  from  one  common  to  the  other. (</) 

292.  The  time  of  enjoying  this  privilege  varies,  as  in  the  case  of  common 
appendant ;  it  may  either  be  throughout  the  year,(c)  or  that  it  should  cease 
at  the  sowing  of  the  corn  ;(e)  but  the  intercommoning  must  take  place  at 
Ps:.-,Hyo-i  ihe  *same  time,  one  vill  cannot  have  it  at  one  season,  and  another 
L         J  vill  at  another  season. (/) 

So  the  townships  or  vills  must  be  adjoining,(_<r)  but  it  may  be  in  several 
manors  ;(^'')  and  where  there  are  two  manors  in  one  town,  the  one  manor 
may  inlercommon  with  the  other. (A) 

Common  because  of  vicinage  can  be  only  for  cattle  levant  and  couchant 
upon  the  lands  to  which  it  is  annexed  ;(t)  and  it  must  be  used  with  common- 
able cattle, (i)  and  the  use  mast  be  restricted  within  reasonable  limits,  for 
the  inhabitants  of  one  vill  ought  in  putting  in  their  cattle  to  have  regard  to 
the  frank  tenement  of  the  other  vill  \{k)  therefore  where  in  the  town  of  A. 
were  50  acres  and  in  that  of  B.  100,  such  towns  lying  together,  resolved 
that  the  town  of  A.  could  put  no  more  cattle  into  their  common  of  50  acres 
than  it  would  feed. (A 

29.3.  There  is  a  species  of  common  by  vicinage  which  is  called  common 
of  shack,  which  prevails  in  the  counties  of  Norfolk,  Lincoln,  and  York,  and 
is  said  to  be  a  special  manner  of  common  for  cattle  to  be  taken  in  arable 
land  after  harvest,  until  the  land  be  sown  again. (/)  Although  according  to 
the  nature  of  this  common  every  owner  may  inclose,  yet  he  cannot  do  so  to 
the  exclusion  of  others,  who  have  enjoyed  the  rig_ht  of  intercommoning 
there.  (/) 


[*274] 


*II.  fi:ommon  of  ISstobcrs. 


§294.  Definition. 

Different  kinfls. 
Appendant  or  appurtenant, 

295.  How  claimed. 

By  Grant  or  Prescription. 
Not  by  ("ustoni. 

296.  Wlio  may  enjoy  it. 
Occupan  t. 
Copyholders. 
Coparceners. 

Not  Inhabitants. 


§  297.  What  may  be  taken. 

Underwood. 

Great  Wood. 
298.  Time  of  takinjr  Estovers. 

Accordin;r  to  Usage. 
2:)9.  How  used. 

To  be  sjjcnt  in  or  upon  the  House. 

Cannot  be  severed. 

Nor  sold. 

Nor  used  for  any  other  Purpose. 


§  294.  Common  of  estovers  is  the  right  of  taking  necessary  wood  from 
the  land  of  another  ;  and,  like  common  of  pasture,  is  of  dilTerent  kinds,  and 

{d)  Gullett  V.  Lopez,  13  East,  318.  (e)  19  E.  4.  10. 

(/)  Dy.  47  b.  (g)  Bronificld  v.  Kirber,  sup.  {h)  Dy.  47  b. 

{{)  Corbett's  case,  7  Co.  5.  (/.-)  13  H.  7.  14,  cited  B.-o.  Com.  pi.  5. 

(J.)  Corbet's  case,  sup. 


COM  MONOFE  STOVERS.  201 

is  entitled  to  notice  as  to  the  mode  of  claiming  it,  the  persons  who  may 
enjoj'  it,  the  things  to  be  taken,  the  time  of  taking,  and  the  user. 

Common  of  estovers  may  be  distinguished  into  the  following  kinds, 
namely,  house-bote,  that  is  wood  for  the  necessary  repairs  of  the  house; 
fire-bote,  or  wood  for  consuming  as  fuel  in  the  house  ;  plough-bole  or  wood 
for  the  repair  of  ploughs  and  other  implements  of  husbandry  ;  cail-bote, 
for  the  repair  of  carls  and  wagons  ;  and  hay  or  hedge-bote,  for  the  repair 
of  hedges  or  fences. 

This  kind  of  common  is  either  appendant  or  apputenant,  as  if  a  man 
grants  to  another  estovers  for  the  repair  of  a  certain  house,  then  llie  right 
becomes  appurtenant  to  that  house  ;(n)  and  it  must  be  claimed  in  respect  of 
ancient  premises  ;(o)  and  it  has  been  frequently  decided  that  none  but 
ancient  premises  can  have  a  right  to  this  common,  and  if  a  man  have  such 
a  common  by  grant  he  cannot  build  new  houses  and  entitle  himself  to 
common  in  respect  of  them  ;(/>»)  so,  not  in  the  case  of  new  hedges  -/^(j)  so,  if 
he  convert  the  *premises  to  other  purposes  he  cannot  claim  esto-  ^^275-] 
vers;(r)  but  if  a  house  having  such  a  right  attached  to  it  be  pulled  L  J 
down,  and  rebuilt  on  the  same  or  another  place,  the  prescription  is  not 
thereby  destroyed  ;(s)  and  so  if  a  house  be  enlarged  or  more  chimneys  built, 
the  estovers  shall  remain  to  the  old  house. (/) 

295.  This  right  can  be  claimed  by  grant  or  prescription  only  ;  and  if 
a  grant  be  shown,  then  it  will  be  held  appurtenant,  and  it  may  be  pre- 
scribed for  as  such  •,{x)  and  if  it  be  appendant  it  is  of  common  right,  and 
may  be  pleaded  witliout  alleging  a  prescription, (y)  If  therefore  a  man  will 
entitle  himself  to  fire-bole,  he  ought  to  state  his  occupation  of  a  house  to 
which  the  liberty  of  taking  fuel  is  attached  ;(;r)  so  where  the  prescription 
was  for  all  the  thorns  growing  on  a  particular  spot  appurtenant  to  a  mes- 
suage and  an  acre  of  land,  provided  they  were  used  on  the  land  on  which 
they  grew,  this  was  held  sufficient,  without  claiming  in  respect  of  an  ancient 
messuage.  («) 

As  a  common  of  estovers  is  a  profit  o  prendre,  and  cannot  therefore  as  a 
rule  be  claimed  by  custom,  for  a  custom  to  take  a  profit  in  alieno  solo  has 
been  holden  to  be  bad,  such  a  right  can  only  be  claimed  by  prescription  :(6) 
and  therefore  a  custom  for  all  the  poor  householders  to  take  estovers  from 
the  waste  of  another  cannot  be  established  ;(c)  but  copyholders  are  an  excep- 
tion to  this  rule,  see  infra  §  296. 

296.  As  a  rule,  the  occupant  of  a  house  shall  have  estovers,  provided  he 
can  shew  a  prescriptive  claim  or  a  grant  *entitling  him  thereto, (rf)  p^o7fi"i 
for   there    are    many    houses   which    have    not  such   commonable  L 
right;(rf)  so,  copyholders  may  have  such  a  right,  if  a  fuslom  to  that  effect 
has  existed  in  the  manor. (e) 

(n)  Plowd.  381.  (o)  Selbv  v.  Robinson,  2  T.  R.  758. 

(/J)  F.  N.  B.,  180,  H. ;  4  Co.  86.  (7)  l"Bulst.  94.  (;)  4  Co.  86. 

(s)  Hob.  40 ;  Godb.  97  ;  Sly.  446.  (/)  4  Leon.  241  ;  2  Ld.  Raym.  1400. 

{x)  Sec  ante,  §  277  ;  also  Selby  v.  Robinson,  sup.  (y)  Sec  ante,  §  269. 

(z)  11  H.  6,  11,  B.;  7  E.  4.  27 ;  10  E.  4,3. 

(o)  Dewclass  v.  Kendal,  Ytlv.  187 ;  S.  C,  Cro.  Jac.  256  ;  1  Bulst.  93  ;  1  Brownl.  219. 

(h)  Grimstead  v.  Marlowe,  4  T.  R.  717;  see  also  Gatesward's  case,  6  Co.  59  ;  Bean  v. 
Bloom,  3  Wils.  456;  S.  C,  2  BI.  92G.         (r)  Selby  v.  Robinson,  sup.  (d)  Vauffh.  190. 

(c)  Stebbinjr  v.  Gosnell,  Moor.  546,  pi.  727  ;  S.C.,  Cro.  El.  629 ;  S.  C,  Anon.,  1  Leon. 
272 ;  S\\-a3'ne's  case,  8  Co.  63  ;  Glascock  v.  Peck,  12  Mod.  360 ;  see  also  Iloskins  t 
Robins,  2  Saund.  320;  S.  C,  1  Vent.  123.  163. 


203  crabb's   law   of  real  property. 

So,  the  eldest  coparcener  shall  as  a  rule  have  estovers,  and  the  other  a 
contribution  in  lieu  thereof:  but  if  there  be  no  other  parcel  of  the  inherit- 
ance, they  shall,  if  certain  be  divided  ;  if  uncertain,  they  shall  be  enjoyed 
alternately. (/) 

But  inhabitants  as  such  cannot  prescribe  ;  they  can  substantiate  such  a 
right  only  by  others,  as  a  mayor  and  burgesses  pleading  it  for  themselves 
and  the  inhabitants  of  such  a  place. (g-) 

297.  The  commoner,  in  this  case,  is  as  a  rule  entitled  to  take  only  under- 
wood, and  loppings,  &c.,  but  there  may  be  prescriptions  more  enlarged,  as 
to  cut  willows  for  the  repair  of  the  house  ;(i^)  and  in  the  case  of  fire-bote, 
grants  have  been  construed  to  give  hberty  to  take  great  wood,  such  as  oaks, 
&c.,  where  small  wood  is  not  to  be  had;(i)  but  the  grantee  can  only  take 
the  wood  he  cuts  himself,  not  that  which  is  already  cut;(A;)  if  therefore  the 
grantor  cut  down  all  the  wood,  the  only  remedy  for  the  grantee  is  an  action 
on  the  case. (A:)     The  taking  must  in  all  cases  be  reasonable. (/) 

298.  The  time  of  taking  estovers  may  be  varied  according  to  the  usages 
of  different  manors,  thus  there  may  be  a  prescription  for  taking  estovers 
P#f,Ky7-i  between  the  feasts  of  *St.  Michael  and  Christ  ma  s,(m)  or  through- 
L  J  out  the  year  except  in  farming  time;(?i)  so,  the  usage  may  be  that 
estovers  may  not  be  had  without  the  view  of  the  baiUff,(o)  if  taken  other- 
wise the  party  is  liable  to  an  action  of  trespass. (o) 

299.  It  is  an  invariable  rule  that  estovers  must  be  spent  upon  the  pre- 
mises which  give  the  right  to  take  them ;(/))  and  if  to  be  used  for  repairs, 
they  cannot  be  appropriated  to  any  other  purpose  ;(7)  and  this  privilege, 
being  once  attached  to  a  house,  cannot  afterwards  be  severed  from  it,  there- 
fore, if  the  owner  of  the  house  grant  the  estovers  to  another  reserving  the 
house  to  himself,  or  the  house  to  another  reserving  the  estovers  to  himself, 
the  estovers  shall  not  thereby  be  severed  from  the  house,  because  they 
must  be  spent  thereon. (r)  On  the  same  principle,  if  a  man  be  seised  of 
a  house  in  right  of  his  wife,  and  another  grants  to  the  husband  and  wife 
sufficient  estovers  to  be  burnt  in  that  house,  the  estovers  are  appurte- 
nant thereto,  and  shall  descend  to  the  issue  of  the  husband  and  wife  ;(s)  and 
so,  if  one  has  a  house  on  the  part  of  his  mother,  and  competent  house-bote 
be  granted  to  him,  to  be  burnt  in  the  same  house,  this  is  appurtenant  to  the 
house,  and  although  it  be  a  new  purchase,  yet  it  shall  go  with  the  house  to 
the  heir  of  the  part  of  the  mother  ;(f)  and  whoever  after  acquires  the  house, 
shall  have  such  common  of  estovers. (t^) 

For  the  same  reason  that  the  estovers  cannot  be  used  for  any  other  than 
the  purpose  for  which  they  were  granted,  they  can  in  no  case  be  sold  •,[x) 

(/)  1  Inst.  164,  16.5. 

Ig)  15  E.  4.  29  ;  White  v.  Coleman,  3  Kcb.  247 ;  S.C,  1  Freem.  134 ;  see  also  R.  v. 
Warkworth  (Inhab.)  1  M.  &  S.  474.  (A)  Fisher  v.  Wren,  3  Mod.  250. 

(t)  Anon.,  3  Leon.  16;  Russell  &-  Broker's  case,  Id.  218. 

{k)  Stile  V.  Butts,  Moor.  411 ;  pi.  516  ;  S.  C.  Cro.  El.  820.         Q)  Bract.  231 ;  Flet.  266. 
(m)  Britt.  153  ;  10  E.  4,  2,  B. 

(n)  Russell  &,  Broker's  case,  2  Leon.  209 ;  S.  C,  3  Leon.  218. 
(o)  5  E.  3,  61 ;  8  E.  3,  54 ;  5  Co.  25.  (p)  7  E.  4, 27  ;  10  E.  4,  8. 

(9)  Earl  of  Pembroke's  case,  Clayt.  47.  (r)  Plowd.  381.  (s)  8  Co.  54. 

(0  lb.,  citing  38  E.  3,  10.  («)  Plowd.  381.  (r)  17  E.  3,  7. 


COMMON'    OF    TURBARY.  203 

* 

SO,  the  estovers  can  be  used  only  for  the  repair  of  the  house,  in  respect  of 
which  they  were  granted, (y)  or  for  rebuikling  it  if  destroyed, (y)  but 
*no  new  house,  nor  any  additions  to  the  old  one,  shall  be  erected  r-}.^n-a-\ 
with  the  estovers. (z)  L     '   J 

Common  of  estovers  being  to  be  used  in  a  house  cannot  be  common   in 
gross. (ff) 


III.  Cciinnon  of  STuvtinvn. 


§  300.  Wliat  it  is. 

Appendant,  iS:c. 
Extent  of  the  Right. 
How  this   Common  may   be 
claimed. 


§  301.  Persons  entitled  to  enjoy  this  Right, 
or  otlicrwisc. 
Not  mere  Occupant. 
303.  Not  restricted  as  to  the  Place  where 
to  be  taken. 


303.  Must  be  used  for  the  proper  Purpose. 


§  .300.  Common  of  turbary  is  the  right  to  dig  turf  upon  another's  land  or 
upon  the  lord's  waste.  This,  like  the  other  rights,  may  be  either  append- 
ant or  appurtenant  ;(6)  so,  also,  it  may  be  in  gross  ;(c)  but  it  cannot  be 
appendant  to  land,  because  turves  are  to  be  spent  in  the  house. (r/)  And  if 
it  be  appurtenant  to  a  house,  it  will  pass  in  a  grant  of  the  house. (e) 

This  liberty  is  more  ample  than  common  of  pasture,  which  is  only  a  riglit 
of  feeding  on  the  herbage  and  vesture  of  the  soil,  as  it  renews  annually,  but 
this  is  a.  right  of  carrying  away  the  soil  itself.  To  this  is  nearly  allied 
another  common  ;  namely,  the  hberty  of  digging  for  coals,  stones,  and  min- 
erals.(_/)  The  manner  of  claiming  this  right,  the  persons  entitled  to  enjoy 
it  and  the  manner  in  which  it  may  be  enjoyed,  are  the  subjects  which  enter 
into  the  consideration  of  this  common. 

It  must  be  claimed  by  grant  or  prescription  in  all  cases,  except  where  it 
is  claimed  by  a  copyholder,  who  should  allege  a  custom. (^) 

*301.  In  respect  to  the  parties  entitled,  or  otherwise,  to  this  r,ifr>-.q-i 
right,  there  is  no  distinction  between  this  and  other  rights  of  L  -' 
common ;  it  has  been  held  that  a  mere  occupant  cannot  have  a  right  to 
carry  away  the  soil  of  the  lord,  and,  consequently,  that  the  custom  was 
ba.d  which  was  laid  to  exist  in  such  a  person. (A) 

So,  hkewise,  a  mere  inhabitant  as  such  cannot  have  this  right ;  but  it 
seems  that  a  mayor  and  burgesses  may  prescribe  to  have  it  for  themselves 
and  the  inhabitants  of  such  a  place. (i)  So,  a  freeman  may  plead  a  custom 
to  take  turves  or  dig  for  slates  or  limestones  for  his  own  use. (A-) 

{y^  Earl  of  Pembroke's  case,  sup. 

(2)  10  E.  4,  3 ;  4  Co.  87 ;  2  Leon.  44  ;  1  Vcntr.  237 ;  1  Sid.  167. 

{a~)  5  H.  7,  7,  B. 

(6)  5  Ass.  pi.  9  ;  7  E.  3,  43  ;  1  Sid.  354.  (c)  1  M.  &  S.  374. 

(d)  Tyrringham's  case,  4  Co.  38.  (e)  Bro.  Com.  pi.  36. 

(  /■)  1  Inst.  122,  a.;   1  M.  &  S.  474.  (e)  1  Taunt.  447. 

(h^  2  Atk.  189^  (»■)  White  v.  Coleman,  1  Frcem.  184. 

(fc)  R,  v.  Warkworth,  (Inhab.)  1  M.  &  S.  474. 


204  CR  abb's    LAW     OF     REAL     PROPERTY. 

Copyholders  may  also  claim  this  common  by  custom,  but  the  custom  must 
be  certain  and  definite,  or  the  claim  cannot  be  established. (/) 

302.  This  right  may  be  limited,  as  the  other  rights  of  common  before 
mentioned  ;  but  where  a  replication,  stating  a  right  of  turbary,  was  objected 
to,  becanse  the  plaintiff'  did  not  entitle  himself  to  take  turves  in  a  certain 
inclosed  part  of  the  common,  and  common  of  turbary  did  not  extend  through- 
out the  whole  waste  as  common  of  pasture  does,  held,  "  that  a  man  may- 
have  common  of  turbary  throughout  the  whole  common,  as  well  as  common 
of  pasture,  though  he  cannot  enjoy  his  right  of  common  of  turbary  in  those 
parts  of  the  common  where  there  are  no  turves,  any  more  than  he  can  enjoy 
his  common  of  pasture  in  those  parts  of  the  common  where  there  is  no 
grass."     Per  Willes,  C.  J.(m) 

303.  Common  of  turbary,  like  common  of  estovers,  must  be  used  for  no 
other  than  the  purpose  for  which  it  was  intended,  namely,  to  be  spent  on 
the  premises.     A  liberty  therefore  to  dig  turf  does  not  extend  to  a  right  to 

j^  -,  dig  for  *sale;(n)  for  it  must  be  expended  on  the  premises  in  respect 
L  J  of  which  it  is  claimed  ;  and  a  plea  which  claimed  common  of  turbary 
as  appertaining  to  an  ancient  messuage,  but  omitted  to  state  that  the  turves 
were  to  be  burnt  in  the  house,  was  held  bad  ;(o)  so,  a  custom  for  all  the 
customary  tenants  of  a  manor,  having  gardens,  to  dig  turves  for  the  improve- 
ment of  their  gardens  has  been  held  bad,  because  it  was  indefinite  and 
uncertain. (p) 


IV.  CCommon  of  lafscarij 


§  304.  What  it  is. 

Appendant,  &c. 
In  gross. 


§  304.  Not  otherwise    distinguished    from 
other  Commons. 


§  304.  Common  of  piscary  is  the  liberty  to  fish  in  another  man's  fish- 
pond, pool,  or  river.  This  is  distinguished  from  a  common,  free  and  several 
fishery,  see  ante,  §  108. 

This  common,  like  the  others,  may  be  appendant,  appurtenant,  or  in 
gross.  In  an  early  c^se,  where  a  defendant  justified  as  having  a  common 
of  fishing  in  the  place  where  &c.  appendant  to  a  certain  house,  his  plea  was 
held  good  ;{q)  but  such  a  right  can  be  claimed  only  in  private  rivers  or 
waters ;  for  there  can  be  no  prescription  for  a  common  of  fishery  in  the  sea 
as  appurtenant  to  certain  messuages,  for  a  right  to  fish  in  the  sea  is  common 
to  all  the  queen's  subjects. (r) 

So,  there  may  be  a  common  of  fishery  in  gross  ;  for  a  fishery  may  either 

(Z)  Wilson  V.  Willes,  7  East,  121.  (w)  Fawcett  v.  Strickland,  Willes,  71. 

(n)  Valentine  v.  Penny,  Noy,  145  ;  see  also  4  Co.  37. 

(0)  Hay  word  v.  Cannington,  1  Sid.  354 ;  S.  C,  1  Lev.  231 ;  2  Keb.  290. 

(  p)  Wilson  V.  Willes,  sup.  (?)  4  E.  4.  29. 

(>•)  Ward  V.  Creswell,  Willes,  265. 


COMMON    IN    A    FOREST.  205 

be  granted  exclusively  to  one,  in  which  case  it  seems  to  be  properly  a 
several  fishery,  (see  ante,  §  108)  or  it  may  be  granted  to  one  in  common 
Avith  others;  *and  if  it  be  attached  to  the  person  in  contradistinction  r^jnon 
to  appendancy  or  appurlenancy,  it  is  properly  a  common  in  gross,  •-  -• 
and  so  it  was  held  to  be  in  an  early  case  ;(s)  and  so,  it  was  said  that  the 
royal  fishery  of  the  Banna  w£is  not  appurtenant,  but  a  fishery  in  gross. (/) 

As  to  who  may  have  this  common,  and  in  what  manner  it  may  be 
taken,  this  common  has  nothing  to  distinguish  it  from  the  other  commons 
already  mentioned,  except  so  far  as  fisheries  arc  under  legislative  restric- 
tions. 


V.  Common  fii  n  JFovc.st. 


§  305.  Definition. 

Saving  of  commonable  Rights. 
Extinaruisliment  of  tlie  RigliL 

to 

306.  What  may  be  talien. 


§  306.  Time  of  taking. 
Fence  month. 
For  what  Cattle, 
Drifts  of  the  Forest. 


§  305.  Common  in  a  forest  is  the  taking  of  accustomed  herbage  and  other 
things  from  the  soil  of  another  within  the  forest. (?<)  This,  like  other 
commonable  rights,  is  either  appendant,  appurtenant,  or  in  gross. (t;)  This 
right  was  reserved  by  an  express  clause  in  the  Charter  of  the  Forest,  to  all 
persons  who  should  be  in  the  enjoyment  of  common  in  lands  or  woods,  that 
might  thereafter  be  afforested.     See  Dig.  P.  i.  tit.  Forests. 

Common  appendant  and  appurtenant  can  be  claimed  only  in  respect  of 
land  within  a  forest ;  therefore,  where  a  prescription  was  made  for  common 
in  a  forest,  and  it  appeared  that  the  place  had  been  disafibrested,  but  the 
special  verdict  did  not  find  that  it  had  been  made  forest  again,  on  that 
ground  judgment  was  given  against  the  claimant  ;(.r)  and  this  is  in  accord- 
ance Avith  the  33  E.  l,stat.  5,  Ordinatio  Forestx,  *\vhich  provides  rjfOQoi 
that  in  purlieus  and  disafforested  grounds,  persons  shall  not  have  •-  J 

common,  but  that  such  may  be  received  again  into  the  forest,  if  they  will 
bear  the  burthen  thereof.  Under  the  32  E.  4,  c.  7  ;  35  H.  8,  c.  17,  s.  8  ; 
and  13  El.  c.  25,  s.  18,  for  inclosing  woods  in  forests,  (see  Dig.  P.  i.  tit. 
Forests),  it  has  been  held  that  the  commoner  is  not  necessarily  excluded 
from  his  common  by  reason  of  such  inclosure.(?/) 

306.  Besides  herbage  and  estovers  generally,  which  are  the  proper  sub- 
jects of  commonable  rights  in  a  forest,  there  is  one  kind  of  estovers  called 
pannage,  consisting  of  acorns,  beech  mast,  and  the  like,  which  may  be 
more  especially  claimed  there,  and  that  too  notwithstanding  they  are  the 
food  of  swine,  and  that  regularly  swine  have  no  place  to  common  in  a 
forest,  (z) 

(s^,  4  Ed.  4.  29.  {t)  Davis,  57.  (u)  Manw.  95.  (v)  Id.  97. 

(i)  Woolridge  v.  Dovev,  Hard.  87 ;  S.  C,  W,  .To.  292 ;  see  also  Trigg  v.  Turner,  2 
Show.  10.  (?/)  Barrington's  case,  8  Co.  136  ;  S.  C,  Godb.  167. 

(s)  But  see  3  Bulst.  213  ;  Bridgin.  26 ;  and  see  in&a. 

November,  1846.— U 


206 


crabb's  law  of  real  property. 


The  time  of  taking  common  in  the  forest  is  regulated  not  onl3r  by  the 
forest  laws,  but  by  several  Acts  of  Parliament,  as  the  20  C.  2,  c.  3,  for  the 
preservation  of  timber  in  the  Forest  of  Dean,  and  the  9  &  10  W.  3,  c.  36, 
for  the  preservation  of  timber  in  the  New  Forest.  The  rights  of  the  com- 
moners are  restricted  by  the  crown  being  enabled  to  inclose  considerable 
parts  of  it,  and  it  has  been  held  under  this  latter  statute  that  the  right  of 
common  in  the  inclosed  parts  is  restrained  absolutely,  during  the  period 
of  inclosure,  but  continued  in  the  uninclosed  parts  under  certain  restric- 
tions, (a) 

By  Manwood  it  is  said  that  commonable  cattle  only,  according'  to  the 
forest,  can  be  put  on  the  conmaon  during  the  fence  month  ;(6)  but  a  pre- 
scription to  have  common  for  cattle  in  the  forest  at  all  times  of  the  year, 
without  excepting  the  fence  month,  has  been  held  good.(c) 

-,  *Regularly,  all  beasts  may  be  put  to  common  in  a  forest,  except 
L  J  goats,  sheep,  swine,  and  geese,  for  which  last  it  has  been  said  that 
there  cannot  be  a  prescription, (J)  and  so  as  to  sheep  and  swine. (e) 

By  the  32  H.  8,  c.  13,  s.  2,  stone  horses  above  the  age  of  two  years,  and 
not  of  the  height  of  fifteen  hands,  are  not  to  be  put  to  feed  on  any  forest, 
chase,  or  common,  &c. 

By  s.  2  of  the  same  statute,  the  time  and  manner  of  making  drifts  of  the 
forest  are  regulated. 

These  drifts  are  said  to  be  when  all  the  cattle,  as  well  of  commoners  as 
of  strangers,  are  driven  by  the  officers  of  the  forest  to  some  certain  inclosed 
place,  and  the  object  of  them  is  to  see  whether  the  commoners  common  with 
such  cattle  as  they  ought ;  also,  that  they  do  not  surcharge  the  forest;  and 
also,  that  there  be  no  cattle  of  any  stranger  commoning  there. (/) 


II.  Kncitfcnts  to  a  ittglit  of  Common. 


§  307.  Seisin. 

How  acquired. 
308.  Is  subject  to  Dower, 

Common  sans  nombre,  when. 
Common  in  gross,  when. 
Subject  to  Curtesy. 


§  309.  Grantably  by  copy. 

310.  RateabiHty. 

311.  Subject  to  Tithe. 

312.  Sufficient  to  give  a  Settlement. 

313.  How  subject  to  Distress. 


§  307.  The  principal  incidents  to  a  right  of  common  are  what  relates  to 
the  seisin  or  possession  of  a  common,  the  estates  to  be  had  in  a  common,  the 
liability  to  rates  and  tithes,  and  the  law  of  settlement  and  distress. 

As  to  the  seisin  necessary  to  entitle  a  commoner  to  the  remedies  against 
disseisin,  (see  post,  §  352,)  it  appears,  a  tortious  use  of  a  common,  or  a  user 


746 


(a)  Biddlecombe  v.  Kerwell,  2  Burr.  1118.  (h)  Manw.  92;  see  W.  Jo.  283. 

(c)  Trigg  V.  Turner,  2  Show.  9  ;  S.  C,  Pollexf.  443 ;  S.  C,  3  Lev.  98;  S.  C,  3  Keb,         I 

6 ;  S.  P.,  Brabrooke  v.  Carter,  3  I-ev.  127 ;  S.  C,  1  Lutw.  81. 


((/)  Manw.  100 ;  but  see  contra,  Webb's  Habeas  Corpus,  3  Bulst.  213. 
(0  Ih  ;  also  4  Inst.  298;  W.  Jo.  293  ;  2  Show.  10  ;  Hard.  87. 
(/)4Inst.  302. 


INCIDENTS    TO    A    niGHT    OF    COMMON.  207 

of  a  common  by  a  tenant  *at  will,  is  not  sufficient  ;(g-)  but  it  is  said  ^„q  .-, 
that  the  user  by  tenant  at  will  would  (before  the  3  &  4  W.  4,  c.  27,  ^  J 
s.  36,  abolishing  the  remedy  by  assize,)  have  given  such  a  seisin  to  him  in 
the  reversion  that  he  might  have  had  an  assize,  if  he  or  his  tenants  had  been 
ousted  or  disturbed. (/i) 

A  user  of  borrowed  cattle  will  it  seems  enable  a  commoner  to  acquire  a 
seisin,  if  he  have  not  sufficient  cattle  of  his  own,  and  borrows  for  the  pur- 
pose of  manuring  the  land;(i)  but  it  is  not  settled  whether  putting  in  cattle 
for  the  mere  purpose  of  gaining  a  seisin  be  good.(i) 

No  certain  number  of  beasts  is  necessary  to  give  seisin,  for  user  of  a 
common  sans  nombre  will  have  this  effect. (^) 

As  to  the  persons  through  whom  seisin  may  be  acquired,  the  seisin  of  the 
tenant  for  life  or  years  is  suflicient  for  him  in  reversion,(/)  but  the  seisin  of 
the  ancestor  is  not  sufficient  for  the  heir  ;(m)  so,  if  a  copyholder  enter  as  a 
commoner,  his  entry  will  be  taken  to  be  in  right  of  the  lord,  though  not  by 
his  command,  and  he  have  not  even  notice  of  it.(n) 

If  a  man  be  disseised  of  his  land,  to  which  common  is  appendant,  he  loses 
his  right  to  the  common  until  he  recovers  seisin. (o) 

308.  Common  appendant  or  appurtenant  is  subject  to  dower,  because  it 
is  certain  in  its  nature,  and  if  it  be  such  a  common  as  will  go  to  the  land 
whereof  a  woman  is  dowable  of,  it  shall  be  intended  after  verdict  to  be  the 

'  one  or  the  other  ;(;;)  but  of  a  common  sans  nombre  a  woman  is  not  dowa- 
ble, and  where  it  is  without  stint  it  has  been  determined  that  it  goes  to  the 
heir,  for  it  is  not  divisible,  since  if  both  the  heir  and  the  widow  were  allow- 
ed to  exercise  the  *right,  there  would  be  a  double  stocking  of  the  r=s9Qc-i 
waste,  which  is  not  reasonable  ;((j')  but  in  favour  of  the  dowress  the  L  -^ 
Courts  will  after  verdict  intend  the  common  to  be  appendant  or  appurte- 
nant, rather  than  common  sans  nombre.{r) 

So,  although  a  woman  will  be  dowable  of  a  common  in  gross,  if  it  be  cer- 
tain, yet  in  order  that  it  may  be  ascertained  the  demandant  ought  to  shew 
for  what  cattle  she  makes  her  claim ;  therefore,  where  a  widow  demanded 
the  then  part  of  a  foldcourse,  without  saying  in  certain  to  what  description 
of  beasts  she  held  herself  entitled,  her  claim  was  disallowed  for  want  of 
greater  certainty. (s) 

For  this  reason  it  is,  that  a  tenement  being  an  uncertain  thing  dower  will 
not  lie  for  it.(^) 

309.  There  may  be  curtesy  of  all  commons  not  excepting  common  sans 
nombre:  for  the  husband  havino-  the  whole  inheritance,  there  is  no  occa- 
sion  for  it  to  be  divided  as  in  the  case  of  dower.(M) 

A  right  of  common,  like  other  incorporeal  hereditaments,  is  grantable  by 

{g)  45  E.  3,  25,  cited  Bro.  Com.  pi.  5  ;  Bro.  Seisin,  pi.  5 ;  22  Ass.  pi.  84,  cited  Bro. 
Com.  pi.  36,  40 ;  14  H.  6,  6,  cited  Fitzh.  Ab.  pi.  228. 

(A)  F.  N.  B.  180,  (I.)  (i)  45  E.  3.  25,  &c.,  sup. ;  Kitch.  123. 

(k)  11  H.  6,  23.  {I)  45  E.  3,  25,  sup.  {m)  lb. ;  sec  also  1  Roll.  Abr.  404. 

(n)  Anon.,  Sty.  Pasch.  1653.  (o)  1  Inst.  122,  b.,  citing  19  H.  6,  33. 

{p)  Pruett  V.  Drake,  Cro.  Car.  300  ;  F.  N.  B.  148,  C. 

(9)  1  Inst.  30,  b.,  32,  a. ;  Perk.  s.  341 ;  1  Roll.  Abr.  675. 

(r)  Pniett  v.  Drake,  sup. ;  see  also  S.  C,  W.  Jo.  315.  («)  Anon.,  Godb.  21,  pi.  27. 

if.)  Anon.,  Stra.  625,  recognising  Pruett  v.  Drake,  sup.  (m)  4  Inst.  30,  b. 


208  CR abb's   law   of   real   property. 

copy  of  court  roll,  being  parcel  of  a  manor,  and  this  it  seems  applies  no  less 
to  common  in  gross  than  to  common  appendant. (a;) 

310.  Right  of  common  being  an  incorporeal  hereditament,  is  not  liable 
to  be  rated  to  the  rehef  of  the  poor;  therefore,  where  the  burgesses  of  Not- 
tingham and  the  occupiers  of  ancient  messuages  there,  had,  as  such,  for  a 
certain  portion  of  the  year,  a  right  to  turn  cattle  into  certain  fields,  and  to 
exclude  during  that  period  the  owner  of  the  soil,  this  was  held  to  be  a  mere 
right  of  common  and  not  rateable  to  the  rehef  of  the  poor,(i/)  that  not  being 

an  exclusive  *occupation  so  as  to  bring  it  within  the  43  El.  ;(z)  for 
[*28bJ  ^iff^Q^gj^  a^  jigj^t  of  common  in  gross  is  a  tenement,(c)  yet  to  make 
it  rateable  it  must  be  coupled  with  an  exclusive  enjoyment  of  the  land  for 
the  time  ;  therefore,  where  a  corporation  was  seised  in  fee  of  waste  lands, 
and  meted  them  out  to  the  resident  burgesses  according  to  a  certain  stint, 
reguliited  by  a  leet  jury,  held,  that  the  burgesses,  who  were  tenants  in  com-  ■ 
mon,  were  liable  to  be  rated  as  occupiers  of  the  land;(6)  so,  where  trustees 
let  out  aftermath  to  different  persons,  they  were  held  rateable  for  such  occu- 
pation.(c)     See  further  Dig.  P.  iii.  tit.  Poor  (Rate.) 

In  Jones  v.  Maunsell,(f?)  it  was  much  discussed  but  not  settled  whether 
the  herbage  and  pannage  of  a  forest  in  the  hands  of  a  subject  be  rateable 
under  the  43  El. ;  but  in  Lord  Bute  v.  Grindal,(e)  it  was  held  that  the 
ranger  of  a  royal  park  is  not  rateable  for  the  herbage  and  pannage  Avhen  it 
yields  no  profit. 

311.  Where  common  is  appendant  or  appurtenant  it  is  considered  as  part 
of  the  land,  and,  therefore,  is  exempt  from  tithe,  because  it  is  paid  in  regard 
of  the  land  to  which  it  appertains ;(/)  but  it  is  otherwise  with  a  common 
in  gross,  for  that  is  annexed  to  the  person,  and  not  to  land,  therefore  the 
party  entitled  to  such  common  must  pay  an  agistment  tithe  in  respect 

thereof.  (»■) 

Regularly,  common  of  estovers,  turbary,  and  piscary,  are  not  liable  to 
tithes,  but  they  may  be  so  by  special  custom.(A) 

*„o-.-i  312.  Before  the  59  G.  3,  c.  50,  (see  Dig.  P.  iii.  tit.  Poor  *(Set- 
L  -'  tlement,') )  a  settlement  might  have  been  gained  by  the  renting  of  a 
common  in  gross  of  the  value  of  £10  or  upwards,  for  a  right  of  common  was 
held  to  be  a  tenement  within  the  13  &  14  C.  2  ;(i)  and  the  hiring  of  com- 
mon of  piscary,  or  of  any  other  kinds  of  common,  has  also  been  held  suffi- 
cient to  give  a  settlement  ;(^)  but  where  a  pauper  freeman  was  entitled  to 

(x)  3IiisgTave  v.  Cave,  Willes,  324,0TerruliEg  Sands  v.  Drury,  Cro.  El.  814 ;  S.  C,  cited 
Hargr.  Co.  Litt  58,  b.  See  also  Co.  Cop.  s.  17  ;  Com.  Dig.  tit.  Copy  (C.  1^ ;  6  Vin.  Abr. 
Cop.  (E.^  pi.  1.  iv)  R.  V.  Cburchill,  4  B.  &  C.  750.» 

(s)  R.'v.  Watson,  5  East,  481  ;  S.  C,  2  Smith,  45. 

{a)  R.  V.  Dersingham,  (Inhab.)  7  T.  R.  671. 

(fc)  R.  V.  Watson,  sup.  recognizing  R.  v.  Aberavon,  (Inhab.)  5  East,  453. 

(c)  R.  V.  Tewkesbury,  (Burgesses,  &c.)  13  East,  155.  (d)  1  Dougl.  302. 

(e)  1  T.  R.  338.  (/)  Ellis  v.  Fermor,  GwiU.  1022. 

is)  GwiU.  1027  ;  Toller  on  Tithes,  p.  89  ;  Hatfield  v.  Rawling,  Gwill.  1030,  n. 

(A)  Toller  on  Tithes,  p.  89,  et  seq.  (i)  R.  v.  v.  Dersineham,  (Inhab.)  7  T.  R.  671. 

(k)  1  T.  R.  361. 

»Eng.  Com.  Law  Reps.  x.  457 


INTEREST    or     THE    LORD. 


209 


a  stinted  common  of  pasture,  and  also  a  right  to  cut  peat  for  his  o\to  use, 
and  get  limestones,  &c.  on  a  moor,  yet  had  never  exercised  the  first  of 
these  rights,  or  ever  had  any  cattle  with  which  to  exercise  the  right,  it  was 
held  that  he  had  not  such  an  estate  as  would  make  him  irremovable  under 
the  13  &  14  C.  2.(/) 

313.  At  common  law  it  seems  there  could  be  no  distress  of  cattle  on  a 
common,  but  the  11  G.  2,  c.  19,  s.  8,  authorizes  a  landlord  or  other  person 
on  his  behalf  to  seize,  as  a  distress  for  arrears  of  rent,  any  cattle  or  stock  of 
their  tenants  feeding  or  depasturing  upon  any  common  appendant  or  appur- 
tenant, or  in  any  way  belonging  to  all  or  part  of  the  premises  demised  or 
holden. 


HI.  ):utcrrst.s  of  the  ?iortr  anU  ffcmmoiicr- 


§  314.  Interest  of  Uie  Lord  in  tlie  Soil. 

315.  Power  to  g^rant  Part  of  Common. 

316.  Lord's  Right  of  Common, 
Ag-istmcnt  of  a  Stranjrer's  Cattle. 

317.  Riffht  to    distrain  Cattle     Damaje 
Feasant. 

318.  Rig-ht  to  keep  Conies,  &c. 

Right  to  dig  and  work  Mines,  «fcc. 

319.  Right  to  approve. 

320.  Who  may  approve. 
Extent  of  the  Right 

321.  Subjects  of  Approvement, 
Sutficiency  mast  be  left  for  Com- 
moner. 

322.  Manner  of  Approving. 


§  322.  Building  on  the  Waste, 

323.  To  depasture  only. 

Commoner  cannot  meddle  with  the 
Soil. 

324.  Remedies  for  the  Commoner  against 

the  Lord. 
In  case  of  Surcharging. 
In  case  of  Inclosore. 

325.  Cannot  abate  Nuisance,  when. 
Cannot  distrain  for  Damage  &asanL 

326.  Right  to  exclude  Lord,  when. 

327.  Commoner's  Remedies  againstStran 

gers. 
323,  Commoner's  Rights'not  to  be  abridg- 
ed. "      ' 


*1.  Interest  of  the  Lord. 


[ *283  ] 


5  314.  The  lord  of  the  manor  has  the  sole  interest  in  the  soil  of  the 
common,(l)  but  the  interest  of  the  lord  and  the  commoner  in  the  herbage 
are  considered  as  mutual  :(m)  a  prescription  or  custom,  therefore,  to  exclude 
the  owner  totally  from  all  manner  of  profit  is  void,  as  unreasonable  and 
against  the  nature  of  common,  it  being  implied  in  the  first  grant,  that  the 
lord  should  have  his  reasonable  profits  there  :(/?)  and  if  the  owner  of  the 
soil  grants  to  another  common  scms  nombre  there,  yet  the  grantee  cannot 
use  the  common  with  so  many  cattle  that  the  grantor  shall  not  have  sufn- 
cient  common  for  his  own;(o)  but  one  may  prescribe  or  allege  a  custom  to 
have  solam  vesfuram  terrse,  from  such  a  day  to  such  a  day,  and  exclude  the 
owner,(/))  and  so  one  may  prescribe  to  have  separalem pasturam  ;[q\  how- 

(/^  R.  V.  Warkworth,  riahab.  1  M.  &  S.  473. 

(m)  2  Comm.  35.  (n>  15  E.  2.     Prest.  51 ;  12  H.  8.  2 ;  1  Inst,  122,  a. 

(o)  12  H.  S.  2  ;  2  Roll.  Abr.  396 ;  S.  P.,  Roll.  Rep.  365.  (  p)  1  Inst.  122. 

{q    lb. ;  but  see  Kenrick  v.  Pargiter,  Ytlv.  129  ;  S,  C,  Xoy,  130 ;  1  Brownl.  18 ;  Potter 


(1)  Wellington  v.  Petitioners,  17  Pick.  91. 


210  crabb's  law  of   real  property. 

ever,  notwithstanding  this  prescription,  the  lord  is  not  excluded  from  other 
profits,  as  mines,  trees,  &c.(r) 

-,  But  if  a  tenancy  escheat  to  the  lord  his  common  shall  *not  increase 
L  J  on  that  account,  for  common  is  appendant  to  the  demesnes  and  not 
to  the  services. (s) 

So,  the  lord  may  exercise  an  entire  dominion  over  the  soil  subject  to  the 
commoners'  rights, (f)  and  the  rights  of  the  common  may  be  so  subservient 
to  the  rights  of  the  lord  in  the  soil,  that  the  latter  may  dig  clay  pits  there, 
or  empower  others  so  to  do,  without  leaving  sufficient  herbage,  if  it  can  be 
proved  that  such  a  right  has  been  constantly  exercised  by  the  ]oxd.(it'j 

315.  So,  the  lord  by  prescription  may,  with  the  consent  of  the  homage, 
grant  a  part  of  the  common  to  be  built  upon.(i;)  And  this  is  independent 
of  the  Statute  of  Merton.(zt»)  So,  it  may  be  a  valid  custom  for  the  lord,  with 
the  assent  of  the  homage,  to  grant  parcels  of  the  waste  to  be  holden  by  copy 
of  court  roll,  and  for  the  grantees  to  inclose  the  same  and  to  hold  them  in 
severalty  freed  from  all  common  of  pasture  and  turbary  against  the  com- 
moners, and  in  exclusion  of  their  rights  •,{x)  but  a  custom  for  the  lord  to 
grant  leases  without  restriction,  so  as  to  annihilate  the  rights  of  the  com- 
moner, is  bad  in  law.(^) 

316.  Where  the  lord's  right  is  not  limited  by  prescription  he  may  put  in 
any  number  of  cattle  he  pleases,  so  that  he  leave  sufficient  for  the  com- 
moners, and  he  may  even  surcharge  any  surplus  there  may  be  of  common 
beyond  what  the  commoners  have  a  right  to  ;(z)  but  he  cannot,  without  a 
prescription,  agist  the  cattle  of  a  stranger  upon  the  common  ;(^z)  aUhough 

,  -,  he  may  by  deed  license  a  stranger  *to  put  in  his  cattle,  leaving  suf- 
L         -'  ficient  for  the  commoners. (a) 

If  the  lord  alien  the  fee,  saving  his  power  of  feeding  as  lord,  he  shall  have 
common  •,{b)  but  it  is  otherwise  if  he  ahens  without  any  saving,  yet  his 
alienee  shall  have  common  ;(c)  and  if  he  grant  a  right  of  common  in  a  cer- 
tain place,  he  cannot  even  erect  a  rick  there. (fZ) 

317.  The  interest  of  the  lord  in  the  soil  is  such  as  to  entitle  him  to  dis- 
train, as  for  damage  feasant,  the  cattle  of  any  one  who  has  no  right  to 
common  there,  even  though  he  have  not  any  interest  in  the  herbage,  and 
he  may  likewise  have  an  action  for  every  other  trespass,  hoAvever  small ; 
while  the  commoner  on  the  other  hand  can  maintain  none  but  for  such  tres- 
passes as  are  detrimental  to  his  interest,  (e) 

V.  North,  1  Saund.  347  ;  S.  C,  1  Lev.  268 ;  North  v.  Cox,  1  Lev.  253  ;  S.  C,  Vangh.  2.51 ; 
2  Keb.  577;  Hoskins  v.  Robins,  1  Ventr.  123;  2  Saund.  320  ;  S.  C,  2  Keb.  750  ;  S.  C, 
Pollexf.  13;  S.  C,  1  Mod.  74. 

()•)  Hoskins  v.  Robins,  1  Ventr.  164  ;  also  sup.,  Potter  v.  Nortli,  1  Ventr.  383; 

(s)  18  E.  3.  48.  (0  Dou  v.  Davidson,  2  M.  &  B.  175.        * 

(u)  Bateson  v.  Green,  5  T.  R.  411.  (r)  Folkard  v.  Hemmett,  5  T.  R.  417,  n. 

(iv)  Boulcott  v.  Winmill,  2  Campb.  261  ;  Lord  Northwick  v.  Stanway,  3  B.  &.  P.  346. 
Sec  also  Lady  Wentworth  v.  C'lay,  Fin.  Rep.  263. 

(x)  Badcrcr  v.  Ford,  3  B.  <fc  C.  153.  (v)  F.  N.  B.  125. 

(z)  30  E.  3.  27  ;  1  Roll.  Abr.  396. 

{,!)  Smilh  v.  Feverell,  2  Mod.  6;  S.C.,  Frcem.  190  ;  Birch  v.  Wilson,  Id.  274  ;  Woolton 
V.  Salter,  3  Lev.  104.  (/>)   18  E.  3.  43  ;  18  Ass.  56,  pi.  4  ;  Br.  Comm.  pi.  22. 

(c)  lb. ;  1  Roll.  Abr.  396.  (d)  Farmer  v.  Grant,  Cro.  Jac.  271 ;  Yelv.  201. 

(«)  Hoskins  V.  Robins,  2  Saund.  328. 


INTEREST    OF    THE     LORD.  211 

318.  The  lord  of  the  soil  may  put  in  the  common  conies  and  other  beasts 
of  warren  'tif)  and  the  commoner  may  not  kill  or  chase  them  ;(^)  but  the 
number  of  the  conies  must  be  reasonable  ;[h)  and  the  lord  must  not  use  his 
warren  to  the  prejudice  of  the  commoner.(j) 

So,  the  lord  may  work  mines  or  dig  brick  earth  \[j)  so,  he  may  plant 
trees  so  as  not  to  injure  the  common  ;(/i)  and  equity  will  not  give  f-^.^Q.-i 
the  tenant  relief,  it  being  held  that  the  *lord  is  entitled  to  the  soil  of  L  ^ 
the  Avaste  ;(/)  so,  the  lord  may  make  fish-ponds  on  the  common,  subject  to 
the  same  restriction. (m)  • 

So,  it  has  been  laid  down  as  a  rule  on  this  point,  that  where  there  are 
two  distinct  rights  claimed  by  different  parties,  which  encroach  on  each 
other  in  the  enjoyment  of  them,  the  question  is  which  of  the  two  rights  is 
subservient  to  the  other.  It  may  be  either  the  lord's  right  which  is  subser- 
A'ient  to  the  commoners',  or  the  commoners'  which  is  subservient  to  the 
lord's.  In  general,  one  would  say,  that  the  lord's  is  the  superior  right,  be- 
cause the  property  of  the  soil  is  in  him  ;  but  if  the  custom,  established  by  evi- 
dence, shew,  that  it  is  subservient  to  the  commoners',  then  he  cannot  use 
the  common  beyond  that  extent. (n) 

319.  The  most  important  right  belonging  to  the  lord  in  his  wastes  is  that 
of  approvement,  a  right  given  to  the  lord  by  the  Statute  of  Merton,  (20  H.  3, 
c.  4,)  and  extended  by  other  statutes  (Westm.  2,  c.  4G;  3  &  4  E.  6,  c.  3, 
&c. ;  see  Dig.  P.  ii.  tit.  Commons,)  by  which  he  is  authorized  to  inclose 
and  convert  to  the  uses  of  husbandry  any  waste  ground,  woods,  or  pastures 
appendant  to  the  estates  of  his  tenants,  or  on  which  they  have  common. 
At  common  law,  it  seems  that  the  lord  could  not  approve  against  his  ten- 
ants,(o)(l)  it  being  supposed  that  the  right  of  common  issued  out  of  the 
whole  waste  ;(yO)  but  on  this  point  there  appears  to  have  been  some  diver- 
sity of  opinion. ((/) 

330.  Although  the  lord  of  the  manor  only  is  mentioned  in  these  statutes, 
yet  it  has  been  extended  by  construction  to  any  owner  of  the  soil;(?')(2)  and 

if)  22  H.  6.  59  ;  Bellew  v.  Lanjrden,  Cro.  El.  876 ;  S.  C,  Ow.  1 14 ;  Concj^'s  cnse,  Godb. 
122  ;  S.  C,  iiom.  Ould  v.  Concye,  4  Leon.  7  ;  see  also  Horsey  v.  Ilagberton,  "Cro.  Jac.  229  ; 
Hassard  v.  Cantrell,  1  Lutw.  38  ;  Cooper  v.  Marshall,  1  Burr.  259  ;  S.  C,  2  Wils.  51. 

{g)  Hoddesdon  v.  Gresil,  Yelv.  104;  Ould  v.  Concye,  4  Leon.  7. 

(A)  Goe  V.  Cothcr,  1  Sid.  lOG.  (i)  Grisell  v.  Leighe,  W.  Jo.  12. 

i^j)  Coo  V.  Cawthorn,  1  Keb.  390. 

{k)  Kirkby  v,  Sadgrove,  1  B.  &  P.  13 ;  S.  C,  T.  R.  483  ;  3  Anstr.  892. 

{I)  V.  Palmer,  5  Vin.  Abr.  7.  (m)  Ow.  114. 

(n)  Per  Duller,  J„  Bateson  v.  Green,  5  T.  R.  416.  (o)  2  Inst.  85. 

Ip)  lb. ;  and  sen  2  Inst.  474. 

iq)  See  1  Roll.  Rep.  365 ;  1  Taunt.  437 ;  3  Comm.  241 ;  and  Dig.  P.  ii.  tit.  Common. 

(r)  Glover  v.  Lane,  3  T.  R.  445. 

(1)  If  sufficient  be  lefl  for  their  use,  it  seems  he  may,  in  New  York,  Van  Rcnssclear  v. 
Radcliff,  10  Wend.  653.  These  statutes  do  not  apply  to  Pennsylvania  where  the  relation 
of  lord  and  tenant  never  existed.     Trustees  v.  Robinson,  12  S.  &  R.  33. 

(2)  It  is  well  settled,  that  a  s(iuare  or  vacant  land  dedicated  to  public  use  expressly  or 
by  implication,  as  by  a  conve3'ancc  bounded  on  a  st|unrc  recited  to  be  so  dedicated, 
Emerson  v.  Wiley,  10  Pick.  310,  Abbott  v.  Miles,  3  Vt.  521,  caimot  be  resinned  or  apiiroved. 
Id.  Every  other  use  of  it  becomes  a  nuisance.  Commomvcaltli  v.  Albergcr,  1  Wliart. 
469.    Rung  v.  Shoeiiberger,  2  W.  23. 


212  crabb's   law    of    real   property. 

r*2q2l  ^  ^°^'^^  ^^'^^  ^^  '^^  ^^  wrong  *may,  by  force  of  the  Statute  of  Merton, 
L         -'  approve  against  the  tenants  and  commoners. (s) 

The  subjects  of  approvement  are  commons  appendant  and  appurtenant, 
for  the  words  of  the  statute  seem  to  be  confined  to  such  portions  of  the 
waste  as  are  attached  to  a  tenement,(f)  and  a  common  by  vicinage  being 
nearly  allied  to  the  first  of  these,  is  approvable  within  the  statute, (i/)  but 
not  a  common  in  gross, (i))  for  the  lord  cannot  approve  against  his  own 
grant. (tf)(l)  So,  it  has  been  held  that  there  can  be  no  approver  in  deroga- 
tion of  a  right  of  common  of  turbary,  since  the  lord  cannot  approve  against 
his  own  grant,  and  common  of  turbary  necessarily  arises  by  a  grant  ;(.r) 
but  if  there  are  two  distinct  rights  in  the  same  waste,  one  of  which  may  be 
approved  against  and  the  other  not,  the  approver  may  take  place  if  there  be 
no  injury  to  the  other  ;(3/)  therefore,  where  there  was  common  of  turbary 
and  common  of  pasture  on  the  same  waste,  it  was  held,  that  the  common  of 
turbary  would  not  hinder  the  lord  from  inclosing  against  the  common  of 
pasture ;  so,  where  a  right  to  take  gravel  was  united  with  a  right  to  take 
pasture. (2;)  See  further  as  to  the  construction  of  these  acts.  Dig.  P.  ii.  tit. 
Commons,  and  the  notes  there.  So  a  custom  authorizing  the  owners  of 
ancient  messuages,  after  clearing  certain  moss  dales,  to  approve  and  hold 
them  in  severalty  has  been  sustained ;(«)  so,  a  custom  for  tenants  in  a 
manor  to  enclose  does  not  abridge  the  common  law  right  of  the  lord  to 
_j^  -,  inclose  ;(6)  but  the  party  who  has  inclosed,  is  *not  entitled  to  com- 
L  -"  mon  in  respect  of  the  land  inclosed, (c)  because  he  cannot  prescribe 
for  what  is  so  improved. (rf) 

321.  But  the  lord  or  owner  of  the  soil  who  improves,  whether  at  com- 
mon law  or  under  the  statute,  must  leave  sufficient  for  the  other  com- 
moners ;(e)(2)  and  the  lord  must  not  improve  the  whole  land,  even  although 
he  leave  sufficient  in  other  lands,  2  Co.  25;  but  see  3  E.  3,  cited  Bro.  Com. 
pi.  52,  where  it  was  held,  that  where  a  lord  had  common  in  three  vills,  he 
might  approve  in  the  one  vill,  leaving  suflicient  in  the  other  two.  The 
insufficiency  of  common  left  is  to  be  presumed  where  the  plea  states  that 
the  inclosure,  no  matter  by  whom  made,  prevented  the  full  enjoyment  of 
the  common  ;(/)  so,  the  extent  of  the  right  to  approve  is  a  question  for  the 

(s)  Ilamerton  v.  Eastoff,  Clayt.  38.  (0  2  Inst.  86. 

(it)  Bro.  Ass.  44G  ;  Smith  v.  How,  4  Co.  38,  cited  1  Inst.  122,  a.;  Harding'  v.  Brooks, 
3  Keb.  24  ;  see  also  Dean  v.  Clayton,  7  Taunt.  489.'  (v)  2  Inst.  475. 

(w)  34  Ass.  pi.  11 ;  cited  Bro.  Com.  pi.  26 ;  Farmer  v.  Hunt,  Cro.  Jac.  271  ;  S.  C,  Yelv. 
201 ;  1  Brownl.  220.  (x)  Grant  v.  Gunner,  1  Taunt.  435. 

(y)  Favvcett  v.  Strickland,  Willcs,  57  ;  S.  C.  Com.  57. 

(2)  Shakespear  v.  Peppin,  6  T.  R.  741.  (a)  Clarkson  v.  Woodhoiise,  5  T.  R.  412,  n. 

(b)  Duberley  v.  Page,  2  T.  R.  932,  n.  (c)  How  v.  Sirode,  2  Wils.  269. 

((/}  2  Inst.  87  ;  4  Leon.  44.  (e)  Dy.  316 ;  2  Inst.  88  ;  Godb.  117. 

(  0  Rogers  V.  Wj'nne,  7  D.  »Sl  R.  521,  recognising  2  Inst.  88;  and  Greenhaw  v.  Isley, 
Wiiles,  619. 

(1)  And  if  the  lord  make  a  colourable  lease  for  the  purpose  of  depriving  the  tenant  of 
his  estovers,  thougii  it  would  be  void,  and  might  be  treated  as  a  nullity,  yet  the  tenant  is 
not  bound  to  run  that  risk,  but  may  submit  to  the  lease  and  take  his  estovers  in  any  other 
lands  of  the  lord.     Van  Rcnssclcar  v.  Bricc,  4  Paige,  174. 

C2)  Van  Rensselear  v.  Radcliff,  10  Wend.  563. 

aEng.  Com.  Law  Reps.  ii.  183. 


INTEREST    OF    THE    COMMONER.  213 

jury,  for  the  right  to  approve  depends  upon  the  question  of  sufficiency  hav- 
ing been  left  at  the  time  for  all  the  persons  having  right  of  common,(of)  and 
if  at  the  time  of  the  approvement  sufficiency  be  left,  it  is  good,  and  the 
approvement  shall  remain,  although  afterwards  it  turn  out  to  be  insuf- 
ficient.(/j) 

Where  a  common  has  been  inclosed  for  the  space  of  thirty  years,  it  shall 
not  afterwards  be  thrown  down  ;(i)  and  if  it  be  suggested  that  an  inclosure 
is  an  improvement  under  the  Statute  of  Merton,  an  injunction  will  be  granted 
until  the  matter  is  determined  at  law. (A:) 

322.  The  waste  ground,  set  apart  by  the  lord,  must  be  divided  by  some 
inclosure  or  fence,  for  if  the  tenant's  cattle  stray  into  the  approved  part,  the 
tenant  will  not  be  a  trespasser  ;(Z)  but  gaps  will  not  prevent  a  parcel  thus 
severed  *from  being  considered  as  an  inclosure  ;(?>«)  so,  where  com-  r-^nqA-\ 
moners  inclose,  one  who  does  not  inclose  cannot  distrain  cattle  ■-  -■ 
damage  feasant,  (n) 

By  the  Statute  of  Westminster  2,  a  power  is  also  given  to  the  lord  to 
erect  certain  buildings  there  specially  mentioned,  as  a  windmill,  sheepcote, 
dairy,  court,  and  necessary  curtilage ;  and  by  construction  this  statute  has 
been  extended  to  a  house  for  the  habitation  of  the  lord,  or  that  of  his  shep- 
herd ;(o)  and  it  seems  that  in  this  case  the  lord  is  not  obliged  to  leave  suffi- 
cient pasture. (p) 

2.  Interest  of  the  Commoner. 

323.  The  interest  which  a  commoner  has  in  the  common  is,  in  the  legal 
phrase,  to  eat  the  grass  with  the  mouths  of  his  cattle  ;  he  must  not  meddle 
with  the  soil,  nor  with  its  fruit  and  produce,  not  even  though  it  may  event- 
ually improve  and  meliorate  the  common ;(//)  therefore,  a  commoner  cannot 
make  a  trench  or  ditch  to  let  the  Avater  off",  unless  there  is  a  custom  to 
authorize  him  ;(r)  so,  unless  by  special  prescription  he  cannot  cut  rushes  ;(.s) 
nor  fill  up  coney  burrows  ;(^)  so,  he  cannot  cut  down  trees. (m) 

Although  the  lord  is  by  presumption  of  law  altogether  entitled  to  the  soil, 
yet  a  custom  giving  the  commoner  a  right  even  to  mines  may  be  established, 
and  acts  of  ownership  for  a  number  of  years  may  be  admitted  in  evidence 
of  such  a  custom.(r) 

*324.  As  a  rule,  the  lord  can  do  no  act  to  injure  the  common  of  ^_^q_-| 
the  tenant,  and,  therefore,  he  cannot  surcharge  the  common  ;  as,  L        -" 

(^)  Arlctt  v.  Ellis,  7  B.  &  C.  346.''  {h)  2  Inst.  87. 

(i)  1  Vern.  32.  (i)  2  Vern.  301.  {I)  2  Inst.  87. 

(m)  Paston  v.  Utbert,  Litt.  Rep.  267. 

(n)  Wells  V.  Pearcy,  1  Bin^.  N.  S.  .556;'=  S.  C,  1  Scott,  42G. 

(0)  2  Inst.  476 ;  Nevill  v.  Ilamcrton,  1  Sid.  79 ;  S.  C,  1  Lev.  62 ;  S.  C,  2  Keb.  283. 
ip)  2  Inst.  476.  (7)  12  H.  8,  2,  a.;  2  Leon.  201,  202;  Godb.  123;  1  Roll.  Abr.406. 

(r)  Howard  v.  Spencer,  Bro.  Com.  pi.  48 ;  1  Sid.  251 ;  2  Bulst.  116  ;  Godb.  182. 
(s)  Bean  v.  Bloom,  3  VVils.  456. 

(t)  Carrill  v.  Pack,  2  Bul-t.  116;  Horsey  v.  Haybcrton,  Cro.  Jac.  229,  recognised  in 
Cooper  V.  IVIarshall,  1  Burr.  259  ;  and  in  Sadgrove  v.  Kirby,  6  T.  R.  483. 
(w)  Sadgrovc  v.  Kirbj',  sup.  (rj  Curtis  v.  Daniel,  10  East,  273. 

•"Eng.  Com.  Law  Reps.  xiv.  53.  cJd.  xxvii.  492. 


214  CR  abb's   law   of   real  property. 

when  he  put  an  unreasonable  quantity  of  conies  on  the  common,  an  action 
against  him  was  sustainable. (a;) 
"So,  if  he  makes  approvements,  it  is  incumbent  on  him  to  leave  sufficient 
pasture  for  the  commoners,  and  the  commoner  may  have  an  action  of  tres- 
pass, or  on  the  case,  if  the  lord  commit  any  excess  ;(^)  so,  if  the  lord  plant 
trees  to  the  prejudice  of  the  common. (2) 

So,  if  the  lord  by  any  inclosure  leave  not  sufficient  common,  the  com- 
moner may  justify  breaking  down  the  inclosure, (a)  as  to  abate  a  hedge  or 
any  other  erection,  for  he  does  not  thereby  meddle  with  the  so\\,{b)  for  a 
hedge,  a  gate,  or  a  wall,  to  keep  the  commoners'  cattle  out  is  inconsistent 
with  a  grant  which  gives  them  a  right  to  come  in  ;(c)  but  unless  the  lord 
does  any  act  which  totally  excludes  the  commoner  from  the  enjoyment  of 
his  rights  (in  which  latter  case  the  commoner  may  do  whatever  is  necessary 
to  16°  himself  into  the  common,)  the  commoner  can  assert  his  right  by 
no  act  of  his  own,  because  he  cannot  make  himself  a  judge  in  his  own 
cause.  ((/) 

335.  On  the  other  hand,  if  the  commoner's  right  be  only  abridged  and 
not  totally  destroyed,  he  must  not  abate  the  nuisance  by  his  own  act,  but 
must  resort  to  an  action  suited  to  the  nature  of  the  injury  ;(e)  therefore, 
when  the  greater  part  of  the  common  is  occupied  by  a  pond,  the  commoner 
may  let  out  the  water ;  sed  secus,  if  he  can  get  to  any  part  of  his  com- 
mon ;(/)  in  this  latter  case  he  can  only  have  an  action  for  the  injury. (/) 

*So,  as  a  rule,  a  commoner  cannot  distrain  the  cattle  of  the  lord 
[*296J  ^^  terre-tenant  damage  feasant ;  but  if  the  lord  surcharges  he  may 
have  his  action ,(g-)  but  see  infra,  §  325 ;  so,  if  a  man  has  common  of  esto- 
vers, and  the  lord  cuts  down  all  the  wood,  the  commoner  cannot  take  that 
which  is  cut,  but  his  proper  remedy  is  his  action  on  the  case  ;(/i)  but  if  a 
man  claim  all  the  thorns,  &c.,  growing  in  such  a  place,  he  may  take  them, 
though  cut  down  by  another. (i) 

326.  The  right  of  the  commoner  may  by  prescription  be  such  as  to  ex- 
clude the  lord,  for  he  may  have  the  sole  common  for  a  certain  time,  as  after 
the  grass  is  cut  until  Lammas-tide,(A;)  and  the  better  opinion  appears  to  be 
(although  it  is  not  settled,)  that  if  the  lord  in  that  case  put  in  more  cattle 
than  he  ought,  the  commoner  may  distrain  them  damage  feasant  ;{l)  so, 
where  the  land  was  by  custom  to  be  entirely  fresh  every  second  year  till 
Lady-day,  it  was  held,  that  the  commoner  might  distrain  the  cattle  of  the 

(x)  Yelv.  143  ;  Grisell  v.  Leighe,  W.  Jo.  12.  (y)  2  Inst.  88. 

(z)  Cooper  V.  Marshall,  sup.     (a)  2  Inst.  33.     (/>)  Mason  v.  Caesar,  2  Mod.  65. 
(c)  1  B.  &,  P.  15.  ^^      ,    „ 

{(1)  1  Roll.  Abr.  405,  pi.  2,  recognised  in  Cooper  v.  Marshall,  sup. 

(e)  Cooper  v.  Marshall,  sup.,  recognised  in  Sadgrove  v.  Kirby,  sup. 

(f)  Carill  V.Park,  2  Bulst.  116.  „       ^    „    ,0,:. 
(V)  2  Leon.  203;  Yelv.  104,  129  ;  Cro.  Jac.  208  ;  Brownl.  187  ;  Godb  182. 

(A)  Palmer's  case,  5  Co.  25 ;  S.  C,  Cro.  El.  820  ;  Noy,  32  ;  Moor.  691,  pi.  955  ;  S.  P., 
Woadson  v.  Nawton,  2  Str.  777  ;  Rackham  v.  Jesup,  3  Wils.  3.32.  ,  „    ,^  ,      ,0 

((•)  Dowglas  V.  Kendall,  Cro.  Jac.  257  ;  S.  C,  nom.  Dewclas  v.  Kendall,  Yelv.  18 ; 
Brownl.  220 ;  Bulstr.  93, 94.  ..      .  ,        r,      •.       v  t     ion 

(/.-)  Kentick  V.  Pargitcr,  Cro.  Jac.  208 ;  S.  C,  nom.  Kennck  v.  Pargitcr,  \  elv.  12J  , 
Nov,  130  ;  2  Brownl.  GO  ;  Wheatland  and  Pain's  case,  2  Roll.  Abr.  267. 

{I)  Kontick  or  Kcurick  v.  Fargiter,  sup. ;  sec  also  Hall  v.  Hardmg,  4  Burr.  ^425 ; 
S.  C,  1  Bl.  673. 


ALIENATION    OF    RIGHT    OF    COMMON.  215 

lord,  because  during  that  season  the  lord  was  totally  excluded,  and  had  no 
colour  to  put  any  cattle  there  at  all.(m) 

327.  A  commoner  may  distrain  damage  feasant  the  cattle  of  a  stranger, 
who  has  no  colour  to  have  his  cattle  there  ;(n)  so,  in  the  case  of  an  abso- 
lutely stinted  common  in  point  of  number,  one  commoner  may  distrain  the 
supernumerary  cattle  *of  another  ;(o)  but  where  the  number  is  not  ^j^oq_-| 
absolutely  certain  in  itself,  and  depends  upon  the  number  of  acres,  L  -^ 
there  must  be  an  admeasurement  of  the  land,  instead  of  a  distress  ;(o)  so,  in 
the  case  of  l^'ancy  and  coiichuncy,  and  in  general  when  there  is  colour  of 
right  for  putting  in  the  cattle,  one  commoner  cannot  distrain. (o)  See  further 
as  to  remedies  post,  §  354  et  seq. 

328.  The  rights  of  the  commoner,  however  limited,  may  be  enforced  in 
all  cases  where  they  are  liable  to  be  defeated  ;  therefore,  if  a  commoner  has 
a  right  of  common  all  the  year  round  when  the  land  hes  fresh,  he  cannot 
be  abridged  thereof  by  sowing  it  oftener  than  is  usual, (/))  or  by  leaving  the 
corn  longer  on  the  ground  than  is  necessary  ;(^)  and  he  will  be  justified 
in  putting  in  his  cattle. (>•) 


IV.  Alienation  oC  ^I'sUt  oE  €ommou. 


§  329.  One  common  convertible  intoanother, 
or  otherwise. 
330.  What  grantable  over. 


§  331.  Mode  of  Alienation. 
332.  What  passes  under  Grants. 


§  329.  Commons,  like  other  property,  are  for  the  most  part  alienable,  but 
the  rule  admits  of  qualifications,  for  in  the  case  of  common  appendant  that 
cannot  be  converted  into  common  in  gross,  because  it  cannot  be  severed 
from  the  land  without  extinguishment  ;(s)  so,  neither  common  appurtenant 
where  the  cattle  must  be  levant  and  couchant  on  the  land,  for  it  is  then  inse- 
parable unless  by  being  extinguished ;(/)  *but  a  common  appurte-  ps^oosl 
nant  for  beasts  certain  may  be  granted  over,  and  so  become  common,  L  -^ 
for  such  a  grant  has  no  connexion  of  tenure  ;(w)  therefore,  where  one  pre- 
scribed in  a  que  estate  for  a  fold  course,  that  is,  for  common  of  pasture  for 
any  number  of  sheep,  not  exceeding  three  hundred,  in  a  certain  field  appur- 
tenant to  the  manor  of  D. ;  it  was  held,  that  he  might  grant  over  this  fold 
course,  and  so  make  it  in  gross,  for  the  number  of  cattle  being  ascertained 
the  severance  is  no  prejudice  to  the  owner  of  the  land  ;(a:r)  so,  where  one 

(m)  30  E.  3.  27  ;  Tiulock  v.  Wliite,  1  Roll.  Abr.  405,  406.  (v)  Godb.  182. 

(0)  Hall  V.  Hardinp-,  sup.  (p)  Trulock  v.  Rigsby,  Yelv.  185 ;  Anon.,  12  Mod.  64S. 

(7)  2  I,con.  202;  1  Brownl.  188;  Cr(f.  Jac.  271.  (?)  Trulock  v.  Riffsby,  sup. 

(s)  4  E.  3.  4fi ;  9  E.  4.  39  ;  26  H.  8.  4,  cllcd  1  Roll.^Abr.  401 ;  1  H.  7.  24  ;  5  H.  7.  7  ; 
Bro.  Com.,  pi.  2S  ;  i=ee  also  Cro.  Car.  542  ;  Wincli.  45. 

(t)  19  H.  6.  33,  B.,  cited  1  Roll.  Abr.  402 ;  Drury  v.  Kent,  Cro.  Jac.  14. 

(«)  5  H.  7.  7,  sup. ;  Drury  v.  Kent,  sup. ;  Daniel  v.  Han.slip,  2  Lev.  C7 ;  S.  C,  3 
Kcb.  66. 

fx)  Spooncr  v.  Day,  Cro.  Car.  432  ;  S.  C,  1  Roll.  Abr.  402  ;  sec  1  E.  3.  1 ;  11  H.  G.22  ; 
27  H.  8.  12;  Perk.  s.  103. 


216  CRABb's    LAW    OF    KEAL    PROPERTY. 

claimed  common  in  gross  for  a  certain  number  of  cattle,  or  the  sole  pasture 
of  certain  herbage,  it  was  held,  that  he  might  license  a  stranger  to  put  in  his 
beasts  •,{y)  so,  where  there  was  a  right  of  common  appurtenant  for  a  certain, 
number  of  cows,  and  it  appeared  in  evidence  that  the  commoners  were  in 
the  habit  of  lettincj  their  rio-ht  and  so  converting  them  into  rig-hts  of  common 
in  gross  during  the  time  of  the  letting,  no  objection  was  made  to  this  mode 
of  using  the  property,  (z) 

330.  Although  a  common  in  gross  sans  nombre,  if  enjoyed  in  fee,  may 
be  granted  over ;(«)  sed  secus,  by  grantees  in  tail  for  life,  or  for  years  ;  for 
an  unlimited  license  to  depasture  would  be  to  the  prejudice  of  the  other 
commoners. (6) 

Estovers,  which  are  to  be  spent  in  a  house,  cannot  be  granted  over,  for 
they  are  attached  to  the  place  which  gives  the  right  to  take  them. (c)(1) 

An  uncertain  piscary,  or  a  common  sans  nombre,  being  an  indivisible 
thing,  cannot  be  divided  between  coparceners,  therefore  either  the  eldest 
sister  must  take  the  whole,  allowing  a  compensation  to  the  other,  or  there 
must  be  alternate  enjoyment  for  a  stated  period. (cZ) 

r*2QQl  *331.  Commons  are  properly  transferable  by  deed,  as  by  grant, 
L  -J  bargain  and  sale,  lease  and  release,  (now  release  alone,  4  &  5  V.  c. 
21,)  and  license,  or  they  may  be  devised;  a  grant  of  a  common  without 
deed  has  been  held  void  ;(e)(2)  so,  there  can  be  no  demise  by  parol  of  a 
commoner ;(/)  and  a  custom  to  demise  a  common  by  parol  cannot  be  sup- 
ported in  law,  being  an  incorporeal  hereditament  ;(g)  so,  although  a  man 
who  has  an  interest  in  the  soil  may  license  another  to  hunt,  or  enjoy  other 
like  hberties,  without  deed  ;(/i)  yet  a  license  to  put  beasts  into  a  common 
can  be  granted  by  deed  only,  Hoskins  v.  Robins,  2  Saund.  328  ;  S.  C, 
nom.  Hopkins  v.  Robinson,  2  Lev.  67,  and  in  the  latter  report  of  the  case  it 
is  said  that  a  license  7;ro  hdc  vie  only  is  good  by  parol,  but  not  if  it  were  for 
a  time  certain,  for  that  would  amount  to  a  lease. 

A  common  de  novo  cannot  be  created  by  bargain  and  sale,  for  the  object 
of  the  sale  is  not  in  esse  as  it  ought  to  be  ;  therefore  where  a  copyholder 
having  common  by  custom  purchased  the  freehold  of  his  tenement,  with  all 

(y)  Hoskins  v.  Robins,  2  Saund.  327. 

(«)  Bunn  V.  Channen,  5  Taunt.  244.»  (a)  21  E.  4.  84. 

lb)  Stampe  v.  Burgcssc,  2  Roll.  Rep.  73  ;  sec  1  Ld.  Raym.  407. 
(c)  22  E.  4.  6 ;  5  H.  7.  7.  (d)  1  Inst.  164,  b,  165,  a. 

(c)  Farmer  v.  Hunt,  Yelv.  201  ;  S.  C,  Cro.  Jac.  271  ;  1  Brovvnl.  220  ;  S.  P.,  Tanner 
and  Hobb's  case,  2  Roll.  Abr.  63.  (/)  ]Mountjoy  v.  Terdrue,  2  Roll.  Abr.  62. 

(«■)  Lathbury  v,  Arnold,  1  Bing.  217  ;^  S.  C,  8  J.  B.  Moore,  72. 
(/()  Monk  V.  Butler,  Cro.  Jac.  574. 


(1)  In  case  of  descent  they  pass  to  all  the  heirs;  but  though  they  cannot  use  the  riglit 
separately,  they  may  by  a  conveyance  vest  the  right  in  one  person.  The  same  principles 
apply  .where  the  right  is  annexed  to  the  land.  Van  Rensselcar  v.  Radcliff,  10  Wend.  630. 
S.  P.  Leyman  v.  Abcel,  16  Johns.  30. 

(2)  The  common  lands  are  vested  in  the  proprietaries  of  the  tou-ns,  and  they  may  con- 
vey to  individuals  by  vote  without  deed  ;  but  if  the  direction  be  that  the  clerk  shall  make 
a  "deed,  no  title  passes  without  the  deed.  Rogers  v.  Goodwin,  2  Mass.  477;  Baker  v. 
Fales,  16  id.  497 ;  Colburn  v.  EUenwood,  4  N.  H.  104  ;  Pike  v.  Dyke,  2  Greenl.  216. 

»Eng.  Com.  Law  Reps.  i.  92.    ^Id.  viii.  302. 


APPORTIONMENT    OF     CO  31  31  ON.  217 

commons  thereto  belonging-,  under  the  words  "  grant,  bargain  and  sale," 
held,  that  this  common,  being  extinguished,  could  not  be  revived  without  a 
special  grant,  and  that  it  could  not  pass  by  bargain  and  sale,  for  that  could 
only  be  by  waj^  of  use,  which  could  not  be  said  of  a  thing  created  de  novo.{i) 
Commonable  rights  may  be  exchanged  for  land,  and  a  release  thereof  by 
the  commoner  is  good,  but  it  must  be  by  deed.(/t') 

332.  Things  appendant  and  appurtenant  to  land  will  pass  with  the  *qnnn 
land  ;(/)  so,  if  the  lord  grant  common  for  beasts,  "^levant  and  couch-  L  J 
ant  upon  his  manor,  or  turbary  to  be  spent  therein,  these  will  pass  by  the 
grant  of  the  manor ;(???)  or  if  a  stranger  grant  all  manner  of  estovers,  house- 
bote, hay-bote,  and  plough-bote  will  pass  \[n)  but  a  common  in  gross  will  not 
pass  by  the  name  of  lands  and  tenements  ;(o)  so,  not  under  the  name  of  all 
pastures  ;(;;)  so,  where  a  copyholder  for  life  had  a  messuage  and  lands,  with 
common  in  the  lord's  waste  belonging  thereto,  and  the  lord  granted  and  con- 
firmed that  messuage,  &c.,  to  the  copyholder,  with  the  appurtenances,  it  was 
held  that  the  common,  being  extinct  with  the  customary  estate,  was  not  re- 
vived by  the  word  "appurtenances ;"(//)  so,  a  right  of  common  cannot  be 
reserved  in  a  demise  under  the  word  "land,"(r)  see  further  as  to  Extinguish- 
ment, post,  §  335. 


V.  ^4J4)ortionmcnt  of  Common. 


§  333.  Common  Appendant  apportionable. 
Common  Appurtenant  not  apportion- 
able. 


§  333.  Common  sansNombre  not  appoition- 
able. 
334.  Other  Cases  of  Apportionment. 


§  333.  Common  of  pasture  if  appendant  is  apportionable,  because  it  is  of 
common  right,  as  if  A.  has  common  appendant  to  twenty  acres,  and  enfeoffs 
B.  of  ten  acres,  the  common  shall  be  apportioned  and  B.  shall  have  common 
pro  rata  ;(s)  so,  although  the  commoner  purchase  parcel  of  the  land  in 
which  the  common  is  to  be  had,  yet  the  common  shall  be  apportioned  ',{t) 
and  if  the  land  be  divided  ever  so  often,  each  parcel  of  land  is  entitled  to 
common  appendant ;(«/)  but  it  is  otherwise  in  case  of  common  appurtenant, 
*for  by  purchase  of  parcel  of  the  land,  the  common  is  extinct,  because  pj^^Qmi 
common  appurtenant  is  against  common  right,  and  it  is  the  folly  of  L  J 
the  commoner  to  intermeddle  with  the  part  of  the  land  which  does  not  belong 
to  him  ;(1)  but  when  the  commoner  intermeddles  only  with  his  own,  by  ali- 
enation of  part  of  the  land  to  which  the  common  is  appurtenant,  this  shall  not 

(i)  Speaker  v.  Styant,  Comb.  127  ;  see  also  Cro.  Jac.  189. 

(k)  Litt.  s.  63  ;  Co.  Litt.  50,  b.  (J)  Lord  Gwj'dir  v.  Foakes,  7  T.  R.  641. 

(m)  1  Inst.  121,  b.  («)  Perk.  s.  51. 

(o)  20  Ass.  pi.  9,  cited  2  Roll.  Abr.  57.        (  p)  26  Ass.,  cited  Id. 

(9)  Marsham  v.  Hunter,  Cro.  Jac.  253  ;  S.  C.,  nom.  Massam  v.  Hunter,  Yclv.  189  ;  S. 
P.,  Fort  V.  Ward,  Moor.  667,  pi.  915.  (r)  Smith  v.  Mihvard,  3  Dougl.  70. 

(s)  Tyrringham's  case,  4  Co.  37  b.         {t)  lb.         (u)  Willes,  230. 


(1)  Livingston  v.  Ten  Broeck,  16  Johns.  14. 


218  crabb's  law   of   re'al  property. 

turn  to  his  prejudice,  because  it  is  not  against  la\v;(a;)  therefore,  where  a 
right  of  common  having  been  granted  to  A.  (who  was  seised  of  lands  in  S.) 
and  all  his  tenants  in  S.,  for  all  commonable  cattle,  and  A.  conveyed  parcel 
of  the  lands  in  S.,  held,  that  the  alienee  was  entitled  to  common  on  the  parcel 
conveyed. (y) 

Common  sans  nombre  is  not  apportionable,(l)  as  where  A.  has  common 
of  pasture  in  twenty  acres  of  land  and  ten  of  those  acres  descend  to"  A.,  the 
common  sans  nombre  being  entire  and  uncertain  cannot  be  apportioned,  but 
shall  remain  ;  but  if  it  had  been  a  common  certain,  (as  for  ten  beasts),  in 
that  case  the  common  should  be  apportioned ;  and  so  it  is  of  common  of 
estovers,  turbuary,  and  piscary  ;(z)  for  no  prejudice  can  arise  to  the  terre- 
tenants  from  common  certain  being  divided  or  annexed  to  part  of  the  manor, 
as  they  cannot  be  charged  with  more  than  they  were  before.(a) 

334.  So,  if  a  man  seized  of  sixty  acres,  prescribe  to  have  common  in 
other  land  for  all  his  beasts  levant  and  couchant  upon  it,  and  he  make  a 
feoffment  of  five  of  these  acres,  his  feoffee  shall  have  common  apportionable 
pro  rata,  for  the  common  is  joint  and  several,  and  no  surcharge  or  other 
wrong  is  done  to  the  tenant  •,{b)  so,  if  a  commoner  prescribing  to  have  com- 
-,  mon  in  two  yardlands  for  four  beasts,  &c.  *after  severance  of  the 
L  -^  common,  and  to  have  common  all  the  year  when  the  land  is  not 
sowed,  afterwards  lease  one  of  the  yardlands  for  years,  the  lessee  shall  have 
the  same  common  pro  rata  ;{c)  so,  if  he  who  has  common  appurtenant  to 
land,  demise  a  part  of  the  land  to  another,  the  lessee  shall  have  common  for 
the  beasts  levant  and  couchant .[d) 


VI.  Evtdtfiufsftment  of  Clommous. 

§  335.  When  Extinguishment  takes  place. 
1.  By  Unity  of  Possession. 


336.  Common  Appendant. 
What  Estates. 

337.  Exceptions  to  the  Rule. 


338.  Common  Appurtenant,  when  extin- 

guished. 

339.  Common  in  Gross. 


2.  By  Severance. 
340.  Wliat  will  cause  a  Severance. 

{x)  Hob.  235 ;  Wild's  case,  8  Co.  79  ;  Kimpton  and  Bellamy's  case,  1  Leon.  43  ;  S.  C, 
Gouldsb.  53  ;  Cole  v.  Foxman,  Noy,  30  ;  see  also  Hutt.  58  ;  Winch.  45;  2  Brownl.  298. 

(y)  Sacheverill  v.  Porter,  Cro.  Car.  482. 

(«)  1  Inst.  149,  a ;  Cro.  Car.  432 ;  Ow.  122.  (a)  1  Roll.  Abr.  232. 

(6)  Wood  V.  Moreton,  1  Brownl.  180 ;  S.  C,  nom.  Morton  and  Wood's  case,  1  Roll. 
Abr.  235. 

(c)  Wood  V.  Moreton,  1  Brownl.  180;  S.  C,  nom.  Morton  and  Wood's  case,  1  Roll. 
Abr.  235.  (d)  Wildman's  case,  8  Co.  79. 


(1)  Nor  of  estovers.    Van  Rensselaer  v.  Radcliff,  10  Wend.  650.    Sed  vide  contra, 
Livingston  v.  Ten  Broeck,  16  Johns.  25,  26. 


EXTINGUISHMENT    OF    COMMONS.  219 

3.  By  Release. 
§  341.  What  kind  of  Release  operates  an  Extinguishment. 

4.  By  Approvement  or  Inclosure. 
342.  Wliere  Inclosure  operates  an  Extinguishment,  or  otherwise. 

5.  By  Dissolution  of  the  Estate. 
343,  Determination  of  Corporation.  344.  Exceptions   to   the  Rule  as   to  the 


Enfrancliisement, 


344.  Relief  in  Equity. 


Enfrancliisement. 


§  335.  An  extinguishment  of  commons  takes  place  in  case  of  unity  of 
possession,  by  severance  from  the  land  to  which  they  belong,  of  a  release  by 
the  commoner,  of  approvement  and  inclosure,  and  of  dissolution  of  the  estate 
to  which  they  are  attached. 

*1.  By  Unity  of  Possession.  [*303] 

336.  A  common  may  be  extinguished  when  the  whole  of  the  land  to 
which  the  common  is  appendant,  is  united  with  that  in  which  the  common 
is  taken  ;(1)  for,  in  that  case,  a  man  has  as  high  and  perdurable  estate  in 
the  thing  claimed,  as  in  the  land  out  of  which  it  is  claimed  ;(e)  therefore, 
where  an  abbot  had  common  in  the  lands  of  another  abbot  appendant  to  his 
own  abbey,  and  both  the  abbeys  at  the  dissolution  of  the  monasteries  came 
into  the  hands  of  the  king,  by  such  unity  of  possession  the  common  was 
held  to  be  extinct ;(/)  but  if  the  estate  in  the  land  to  which  the  common  is 
annexed  is  not  so  high  and  perdurable  as  that  where  the  right  of  common 
exists,  it  is  not  such  a  unity  of  possession  as  to  extinguish  the  common  ;(«•) 
and  it  must  be  not  only  as  high,  but  also  equally  perdurable,  see  infra,  §  337. 

337.  So,  where  the  common  is  annexed  to  a  customary  tenement,  parcel 
of  a  manor,  a  right  of  common  will,  it  seems,  in  that  case  survive,  so  that 
the  lord  may  not  be  prejudiced;  therefore,  as  in  the  case  of  a  common  ap- 
pendant, where,  if  a  tenant  of  a  manor  purchased  a  seignory,  and  then 
granted  over  the  tenancy,  held  that  the  common  which  he  had  before  should 
still  be  appendant,  for  it  was  not  extinguished  by  the  unity,  but  should  pass 
with  the  tenancy,  though  otherwise  of  a  common  in  gross  ;(A)  so,  where  a 
copyhold  tenement  was  seized  into  the  hands  of  the  lord,  who  re-granted  it 
as  copyhold,  the  right  of  common  was  held  not  to  be  extinct,  and  that,  as 
long  as  the  tenement  to  which  it  belonged  was  demisable  by  copj''  of  court- 

(f)  Tyrringham's  case,  4  Co,  38  a,  citing  24  E.  3,  25,  and  overruling  14  Ass.  pi.  20 ;  15 
Ass.  pi.  2 ;  see  also  Bro.  Exting-uishment,  pi.  19.  27;  2  Sid.  Ill ;  4  3Iod.  363. 
(/)  Nelson's  case,  3  Leon.  123.  (g)  1  Inst.  313,  b. 

(A)  Jourdan  v.  Atwood,  0\v.  122. 

(1)  Ante,  301,  n.l. 


220  crabb's  law   of   real   property. 

roll,  it  would  remain  ;{i)  so,  if  the  lord  of  a  manor  *alien  his  waste, 
[■304J  ,^|^^  copyholder's  right  of  common  is  not  gone,  although  the  com- 
monable soil  is  devested  from  his  person  ;{j)  so,  where  there  was  a  manor 
in  the  king's  forest,  and  the  lord  and  the  tenants  had  common  in  the  wastes 
of  the  forest,  and  also  in  the  lands  of  the  freeholders,  and  at  the  dissolution 
the  manor  came  into  the  king's  hands,  by  this  unity  of  possession  the  com- 
mon was  extinct  as  to  the  lord,  though  not  as  to  the  copy  holder,  (it)  If  only 
part  of  the  land  is  purchased  by  the  commoner  in  which  the  common  is,  it 
is  extinct  only  for  that  part,  because  common  appendant  is  apporiionable, 
see  ante,  §  333. 

338.  Common  appurtenant  cannot,  like  common  appendant,  be  extinct 
for  part,  and  in  esse  for  part,  by  act  of  the  parties,  (see  supra,  §  337,) (/) : 
therefore,  if  a  commoner  purchases  parcel  of  the  land  in  which  he  has  com- 
mon appurtenant,  this  extinguishes  all  the  common,(m)  common  appurte- 
nant not  being  apportionable  like  common  appendant  ;(?i)  so,  common  appur- 
tenant to  house  and  land  is  extinguished  by  purchase  of  the  land.(o)(l) 

339.  Where  the  whole  waste,  in  which  common  in  gross  sayis  nombre 
is,  comes  by  purchase  to  the  commoner,  it  is  lost  1(7))  therefore,  where  an 
abbot  had  a  common  in  gross  sans  nombre,  which,  on  the  dissolution  of  the 
abbey,  became  united  to  the  crown,  by  such  unity  of  possession  the  com- 
mon was  destroyed,  and  could  not  be  revived  in  the  hand  of  the  patentee, 
for  then  any  man  that  had  any  part  of  the  abbot's  possessions  would  have  as 
great  a  common  as  the  abbot  himself  had,  and  the  king's  land  might  be  infi- 

*qnn"i  '^it^^Y  *surcharged  ;((/)  and  if  one  who  has  common  in  a  great  field 
L  J  in  which  many  have  land,  purchase  an  acre  from  one  of  them,  all 
bis  common  will  be  extinct  ;(r)  but  it  has  been  said  that  common  sans 
nombre  in  gross  cannot  be  extinguished  by  purchase  of  parcel  of  the  land  ;(s) 
and  shack  or  mutual  common  will  not  be  extinguished  by  uniting  of 
possession,  because,  as  is  said,  it  is  for  the  public  good  that  it  should  be 
used  without  inclosure.(/)  Extinguishment  is  properly  produced  by  the 
act  of  the  party,  for  by  act  of  law  there  will  be  no  extinguishment,  as  the 
law  works  no  injury. (^) 

2.  By  Severance. 

340.  Commons  are  likewise  destroyed  by  severing  them  from  the  tene- 
ment to  which  they  are  appendant  or  appurtenant,  as  where  one  aliens  the 

(0  Badger  v.  Ford,  3  B.  «fe  A.  153.o 

( j)  18  Ass.  pi.  4.         (A-)  Itin.  de  Waltham,  W.  Jo.  349.         (Z)  Tyrringham's  case,  sup. 

(w)  Dy.  339  ;  Wild's  case,  8  Co.  79  ;  Morse  v.  Webb,  1  Brownl.  180 ;  2  Brownl.  297. 

(n)  See  Kinipton's  case,  Gouldsb.  53 ;  S.  C,  nom.  Kimpton  v.  Bellamy,  1  Leon.  44 ; 
S.  C,  nom.  Rampton's  case,  cited  Cro.  El.  594;  S.  C,  And.  159,  pi.  203;  see  .also  ante, 
§  333.  (o)  Bradshaw  v.  Eyre,  Cro.  El.  570.  (p)  7  H.  6,  3. 

(</)  Sawyer's  case,  W.  Jo.  286 ;  S.  C,  cited  3  Salk.  93.         (;■)  18  E.  3, 44 ;  11  Ass.  pi.  4. 

(s)  1  Ld.  Raj-m.  107.  (0  Kimpton's  case,  sup.  §  338. 

(1)  Ante,  301,  n.  1. 
oEng.  Com.  Law  Keps.  v.  247. 


EXTINGUISHMENT    OF    COMMON.  221 

tenement  excepting  the  common  right  attached  to  it  ;(?<]  so,  if  a  man  seised 
of  land  to  which  common  is  appendant,  be  disseised  of  the  common,  and 
afterwards  enfeoff  another  of  the  land,  the  common  is  extinct  forever  ;(a:) 
so,  if  a  house  be  destroyed  to  which  common  of  estovers  is  attached  the 
right  is  gone  ;{y)  but,  enlarging  a  house,  or  building  new  chimneys,  will 
not  cause  a  loss  of  the  right  ;(s)  nor  will  the  right  be  destroyed  by  the  act 
of  God,  for  this  prejudices  no  man;(s)  so,  the  act  of  the  lord,  independent 
of  the  commoner,  will  not  operate  to  the  prejudice  of  the  latter,  as  where  a 
manor  was  granted  to  A.,  with  a  reservation  of  trees,  and  A.  granted  a 
copyhold  estate  for  life,  it  was  held,  that  notwithstanding  the  reservation,  the 
tenant  might  take  the  loppings. (a) 

*3.  By  Release.  [*306] 

341.  It  has  been  held  that  a  release  of  common  in  one  acre  is  a  release 
of  all;(6)  but  in  Cole  v.  Foxman,(c)  the  Court  held  it  not  to  be  extinguish- 
ment, but  that  the  common  was  in  that  case  apportionable,  so  that  it  should 
be  no  prejudice  to  the  terre-tenant;  and  so,  in  Benson  v.  Chester,(f/)  it  is 
said,  that  "a  release  by  one  commoner  of  his  right  over  one  part  of  the 
common  may  possibly  operate  as  a  release  of  his  right  over  the  whole,  but 
if  that  were  the  consequence  of  a  release  by  all  the  commoners,  there  would 
long  ago  have  been  an  end  of  all  the  rights  of  common  throughout  the 
kingdom."  (e) 

4.  By  Ap'proveraent  or  Indosiire, 

342.  Approvement  by  the  lord,  operating  to  exclude  the  commoner  from 
the  improved  part,  is  an  extinguishment  of  common  as  to  that  part  ;[g^  but 
if  the  commoner  purchase  a  part  which  is  approved,  his  common  shall  not 
be  extinct  in  the  residue  :  therefore,  where  one  had  common  appendant  to 
ills  tenement,  and  the  lord  improved  a  part  of  the  waste,  leaving  sufficient 
common  for  the  commoners,  and  afterwards  enfeoffed  the  commoner  of  the 
improvement,  held  that  this  did  not  extinguish  his  common  in  the  residue. (A) 

In  common  pur  cause  de  vicinage  if  oae  inclose  part,  it  is  an  extinguish- 
ment of  all  the  common  ;(i)  and  it  is  the  same  if  but  one  acre  be  inclosed  ;(^) 
but  to  effect  an  entire  extinguishment  of  this  common,  there  must  be 
such  an  inclosure  as  will  prevent  the  cattle  from  straying  from  one  field  to 
*the  other. (/)  In  Bradshaw  v.  Bokenham,(m)  it  is  said,  that  if  a  p^^oA^-i 
commoner  incloses  part  of  the  waste  in  Vt^hich  he  ought  to  have  L  J 
common,  it  is  extinguished  ;  but  in  Bradshaw's  case,(?i)  the  right  of  com- 
mon in  such  case  is  suspended.  As  to  the  effect  of  inclosures  under  Inclo- 
sure Acts,  see  Dig.  P.  ii.  tit.  Common  (Inclosure.) 

{u)  1  Roll.  Abr.  401 ;  see  also  Revell  v,  Joddrell,  2  T.  R.  415  ;  Doe  v.  Davidson,  2  M., 
&  S.  175.  (x)  Bp.  of  London's  case,  1  Roll.  Abr.  935. 

(y)  Plowd.  381 ;  Winch,  45.  (2)  Luttrell's  case,  4  Co.  86. 

(a)  Swayne's  case,  8  Ck),  63 ;  S.  C,  231 ;  see  also,  Hob.  43. 
(6)  Morse  v.  Webb,  1  Brownl.  180 ;  Wood  v.  Moreton,  Id.  (c)  Nov,  30. 

((/)  8  T.  R.  401.  (e)  Per  Ld.  Kenyon,  C.  J.  (s)  See  ante,  §  336. 

(h)  Dy.  399,  pi.  45.  (i)  Bacon  and  Palmer's  case,  4  Co.''37 ;  S.  C,  1  Brownl.  174. 

Ik)  Harding  v.  Brookes,  3  Keb.  24.  (/)  Gullett  v.  Lopez,  13  East,  348. 

(m)  Noy,  186,  citing  11  H.  6,  22 ;  19  H.  6,  11.  (n)  1  RoU.  Abr.  933. 

November,  1846. — 15 


223  crabb's  laav  of  real  property. 

5.  By  Dissolution  of  the  Estate. 

343.  If  the  estate  be  dissolved  to  which  the  common  is  attached,  the  com- 
mon will  go  with  it,  as  if  a  corporation  having  common  in  gross  be  deter- 
mined, the  right  is  extinct  ;(o)  so,  if  the  inhabitants  of  a  vill  claim  common 
as  appendant  to  an  ancient  messuage,  and  any  one  builds  a  nev/  house  or 
destroys  the  ancient  messuage,  the  common  is  gone  ;(p)  so,  by  enfranchise- 
ment, the  common  is  extinguished,  for  common  which  was  first  gained  and 
annexed  to  a  copyhold  by  custom,  will  be  lost  when  the  copyhold  is  extinct  by 
enfranchisement,  for  common  is  not  in  its  own  nature  incident  to  a  copyhold 
estate,  but  a  collateral  interest  gained  by  usage  ;  therefore,  where  a  copy- 
holder of  a  messuage  and  land  for  life,  had  common  in  the  lord's  waste,  and 
the  lord  granted  and  confirmed  the  said  messuage  and  lands  with  the  appur- 
tenances to  him  and  his  heirs,  it  Avas  held  that  he  should  still  not  have  com- 
mon, for  the  estate  to  which  the  common  was  annexed,  was  destroyed  by  his 
own  act,  for  in  accepting  the  freehold,  the  common  was  also  destroyed, (^) 
unless  there  be  special  words  of  grant,  as  if  a  copyholder  hath  common 
in  the  waste,  and  the  lord  enfeoffs  him  of  the  copyhold  "with  all  pas- 
tures and  commons  whatsoever  to  the  said  messuag-e  or  tenement  belono-- 
r*SOfi~l  ^"»'  "^^*^'  °''  *enjoyed  therewith,"  the  common  is  preserved, 
L  -^  because  the  intent  is  clear  that  a  like  common  should  be  granted 
as  he  had  before  ;(?•)  but  when  the  lord  grants  and  confirms  the  copyhold 
lands  with  the  word  appurtenances,  it  was  held  that  the  common  was  not 
saved  by  the  general  word  "  appurtenances,"  because  the  common  is  not 
appurtenant  to  the  freehold  granted  by  the  lord  to  which  these  words  must 
be  supposed  to  refer,(s)  and  the  word  "  appurtenance"  is  not  sufficient  to  pass 
the  common  ;(s)  so  where  a  copyholder  had  used  to  take  estovers  to  repair 
the  hedges,  and  the  lord  granted  to  him  the  freehold  by  the  words  "  all  the 
lands  and  tenements  thereunto  appertaining,"  it  was  nevertheless  held  that 
he  should  not  have  common  in  the  land  of  the  lord. (A 

344.  A  distinction  has,  however,  been  taken,  when  the  wastes  in  which 
the  copyholder  has  common,  are  within  the  manor  or  out  of  the  manor; 
therefore,  where  copyholders  had  common  in  the  soil  of  a  stranger,  it 
remained  notwithstanding  the  enfranchisement  of  the  land,  and  should  be 
enjoyed  by  all  the  tenants  of  the  land,  as  it  had  been  before  by  the  copy- 
holders.(i<)  And  it  is  said,  "that  where  a  copyholder  claims  common  in  the 
waste  of  the  manor,  it  properly  and  strictly  belongs  to  his  estate  as  copy- 
holder, and  if  he  enfranchises  his  copyhold  his  common  is  lost ;  but  where 
he  claims  it  out  of  the  manor,  it  belongs  to  the  land  and  not  to  the  estate  ; 
and  if  he  enfranchises  the  estate,  yet  the  common  continues. "(x) 

But  where  one  had  two  manors.  Dale  and  Sale,  and  the  copyholders  of 
Dale  had  used,  time  out  of  mind,  to  have  common  in  the  manor  of  Sale,  tt 

(o)  27  H.  8. 10.  (p)  Costard  v.  Wingfield,  2  Leon.  44. 

{q)  Rlarsliam  v.  Hunter,  Cro.  Jac.  253  ;  S.  C,  nom.  Massam  v.  Hunter,  Yelv.  189  ;  S. 
C,  Darson  v.  Hunter,  Noy,  13G  ;  see  also  Hob.  190  ;  1  Brownl.  220 ;  2  Brownl.  209 ;  1 
Bulstr.  2.  (r)  Worley's  case,  2  And.  168. 

(s)  Yelv.  189,  sec  supra,  ii.  {q.)  {t)  Fort  v.  Ward,  Moor.  667. 

(«)  Packman  v.  Cole,  2  Sid.  84. 

{X)  Per  Holt,  C.  J.,  Crouther  v.  Oldficld,  S.  C.  nom.  Crowther  v.  Oldficld,  2  Ld.  Raym. 
1225. 


SUSPENSION    OF    RIGHT    OF     COMMON.  223 

c  contra;  and  the  lord  sold  both  the  manors,  and  afterwards  the  copyholders 
of  the  *manor  of  Dale  died,  and  others  were  admitted,  it  was  held  i-^oaq-i 
that  they  could  not  claim  the  common  which  the  other  had,  for  it  L  -* 
was  extinguished  by  the  alteration. (y) 

In  cases  of  this  kind,  however,  it  appears  that  parties  may  have  relief  in 
equit}''  ;  therefore  Avhere  the  lord  of  the  manor  enfranchised  a  copyhold 
with  all  the  commons  thereto  belono-ing,  it  was  held,  that  althouo-h  the  com- 
mon  was  extinct  at  law,  yet  it  subsisted  in  equitj'-,  and  it  was  decreed,  that 
the  plaintiff  should  have  the  same  right  of  common  as  belonged  to  the 
copyhold.  (2) 


VII.  ^ut-prnjsioii  of  the  ZUaht  of  Common. 

§  345.  What  it  is,  and  when  it  happens,      |    346.  Otlier  Cases  of  Suspension. 


§  345.  In  some  cases  the  common  will  be  lost  for  a  time  only,  or,  as  it  is 
termed,  will  be  suspended,  as  where  a  commoner  takes  a  lease  of  one  acre 
out  of  which  his  common  issues,  the  whole  of  his  right  is  suspended  during 
the  term;(«)  so,  if  a  commoner  inclose  part  of  the  waste  in  Avhich  he  feeds 
his  cattle,  his  right  was  held  thereby  to  be  suspended  ;(6)  so,  if  he  disseised 
his  lord,  the  common  was  suspended  during  the  disseisin. (c)  So,  if  the  com- 
moner were  disseised,  his  common  should  cease  until  he  had  recovered  his 
seisin,  that  the  common  might  not  be  doubly  charged. (cZ) 

346.  So,  where  the  common  is  not  extinguished  by  reason  of  the  ine- 
quality of  the  estates,  a  suspension  only  is  *the  consequence,  as  piqin-i 
where  a  parson  had  common  appendant  to  his  parsonage  out  of  L  J 
abbey  lands,  and  the  parsonage  was  afterwards  approjiriated  to  the  abbot  and 
his  successors,  it  was  held  that  the  abbot  had  not  an  estate  of  equal  duration 
in  the  one  as  in  the  other,  for  the  parsonage  may  be  disappropriated,  and 
then  the  parson  shall  have  common  again  ;(f)  so,  where  conmion  was  annex- 
ed to  certain  tenements,  parcel  of  the  abbey  of  Sarum,  which  came  to  H.  8, 
at  the  dissolution,  and  the  Dulchy  of  Cornwall,  in  which  a  common  H.  was 
at  that  time  also  in  the  possession  of  H.  8,  so  that  hereby  there  was  unity  of 
possession,  both  of  the  tenements  to  which  the  common  of  pasture  appertain- 
ed, and  of  the  H.  common,  yet  it  was  held  that  this  was  not  such  a  unity  of 
possession  as  would  work  an  extinguishment,  for  the  king  had  only  a  base 
fee  in  the  Dutchy  of  Cornwall,  being  in  only  for  want  of  an  heir,  but  he  had 
a  fee  simple  in  the  H.  common,  therefore  the  common  was  only  suspend- 
ed ;(/)  so,  if  a  cop3^holder  as  such  has  a  right  of  common  in  an  adjoining 
manor,  and  he  purchases  that  manor,  it  would  not  extinguish  forever  the 

(y)  Gryme's  case,  1  Bulst.  19,  sed  qumre. 

(z)  Styant  v.  Staker,  2  Vcrn.  250 ;  see  also  6  Mod.  19,  20. 

(a)  11  H.  6.  22  a.b,  cited  9  Co.  135.  (6)  Eradshaw's  case,l  Roll.  Abr.  938. 

(c)  16  H.  7.  11,  cited  Bro-  Com.  pi.  12.  (d)  19  H.  G.  33. 

(e)  Anon.,  Godb.  4,  (/)  R.  v.  Hermitage  (Inhab.,)  Carth.  241. 


224 


crabb's  law  of  real  property. 


right  of  common  incident  to  his  copyhold,  because  that  ■would  prejudice  the 
lord.(g-) 


VIII.  iiciJiual  of  Commons. 

§  347,  In  what  Cases.  |    347.  What  amounts  to  a  new  Grant. 


§  347.  Common  though  extinguished  for  a  time  may  nevertheless  not  be 
Avhollj'  lost,  but  will  afterwards  revive,  and  this  may  happen  not  only  in  the 
cases  of  suspension  before  mentioned,  but  also  in  some  cases  of  a  new  grant ; 
therefore,  where  the  suspension  takes  place  during  a  term,  it  was  held 
ri-Qii-i  *that  the  commoner  who  made  the  lease  might  claim  the  common 
L  -'  generally  by  prescription,  for  the  suspension  respected  the  possession 
only,  and  not  the  right,  and  the  inheritance  of  the  common,  therefore,  still 
remained,  and  where  prescription  or  custom  makes  a  title  of  inheritance,  the 
party  cannot  alter  or  wave  it  by  matter  in  pais  ;(^/i^  so,  although  a  grant  of 
all  common  belonging  or  appertaining  to  land  was  held  net  to  revive  a  com- 
mon which  had  been  extinguished  by  unity  of  possession  ;  yet  if  the  grant 
had  been  of  all  commons  used  therewith,  it  would  have  amounted  to  a  new 
grant  ;(i*)  but  a  user  on  the  part  of  the  occupier  must  be  proved,  otherwise 
the  common  will  not  pass  ;(^')  so  if  a  copyhold  to  which  common  belonged 
escheat,  and  the  lord  grants  it  with  all  common  appurtenant,  it  was  held  that 
the  grantee  should  have  common,  although  the  ancient  common  was  extinct, 
for  it  operated  a  sa  new  grant ;(/)  so,  a  grant ^of  Himley-Hall,  and  all  lands, 
tenements,  and  hereditaments  thereto  belonging,  or  therewith  occupied  and 
enjoyed,  in  like  manner  as  A.  had  enjoyed  them,  the  old  common  having 
been  extinguished  by  unity  of  possession,  this  was  holden  to  revive  the  com- 
mon, and  it  should  be  intended  that  this  was  a  feeding,  and  should  be  the 
same  as  the  tenant  A.  had  had,(??!) 


[*3i2]  *ix.  Kujun'cjs  to  litfjlU  of  (Common,  nnti  tUcfr  llemrtrtcs. 


§  348 


Disseisin. 
Disturbance. 

349.  Remedy  for  Disseisin  formerly. 
Remedy  remaining. 

350.  Distress. 
Drifl  of  Cattle. 

Injuries  in  respect  to  Fences. 
Malicious  Injuries. 
Jurisdiction  of  the  Leet. 
Jurisdiction  of  the  Court  of  Chancery. 
Disseisin. 

Disturbance   of  Commoner  by  the 
Lord,  iStc. 


351. 

352. 
353. 


§  354.  Remedies. 

By  the  Party's  own  Act. 

355.  When  applicable,  or  otherwise. 

356.  By  Action   on    the   Case  against 

Lord. 

357.  Not  by  Trespass. 
Nor  by  Indictment. 

358.  Remedies  of  one  Commoner  against 

Another. 

359.  Remedies    of   Commoner   against 

Strangers. 
Disseisin  of  Election. 
Distress. 

(A)  1  Inst.  114,  b.;  9  Co.  135. 


(s)  Arg.  2  T.R.  421,422. 
(?)  Clements  v.  Lambert,  1  Taunt.  205. 
{k)  Bradshaw  v.  Eyre,  Cro.  El.  570.      (/)  Worledge  v.  Kingswcl,  Cro.  El.  794. 
{m)  Gargrave  v.  Gargrave,  2  Brownl.  52.     See  also  Hob.  131  ;  Sandeys  v.  Oliif,  Moor. 
4G7,  pi.  663 ;  Clements  v.  Lambert,  sup. 


INJURIES     TO     RIGHT     OF     COMMON.  225 

§  3-18.  Injuries  to  the  right  of  common  and  their  several  remedies,  are 
such  as  effect  the  lord  and  the  commoner. 

1.  Effecting  the  Lord. 

The  civil  injuries  affecting  the  lord  are  either  disseisin  or  disturbance. 
Disturbance  is  any  act  by  which  the  right  of  another  to  his  common  is 
incommoded  or  diminished. (n)  Disturbances  aje  of  different  kinds,  as 
when  one  having  no  right  puts  cattle  on  the  lord's  waste, (o)  or  one  having 
a  right  either  puts  cattle  which  are  not  commonable, (/>)  or  puts  more  cattle 
on  the  waste  than  the  herbage  will  sustain,  or  the  party  has  a  right  to  place 
there,  which  is  called  surcharging,(y)  or  encroaching  on  the  waste  by 
inclosureor  otherwise. (r) 

349.  The  remedy  for  disseisin  is  ejectment,  and  that  is  the  only  remedy 
since  the  abolition  of  the  assize  of  novel  *disseisin  by  the  3  &  4  W.  pnio-i 
4,  c.  27,  s.  36  (see  Dig.  P.  iii,  tit.  Limitations  ;)  but  before  that  act  L  -^ 
■abolishing  a  writ  of  right  the  lord  was  barred  his  remedy  by  ejectment  by 
an  adverse  possession  of  twenty  years,  and  must  have  had  recourse  to  a 
a  Avrit  of  right, (s)  and  now  in  that  case  he  is  barred  from  bringing  any 
action. 

The  remedies  for  disturbance  are  either  by  action,  writ  of  admeasurement, 
or  distress. 

The  lord  might  (before  the  3  &  4  W.  4,  c.  27,  s.  36,  abolishing  real 
actions)  have  brought  a  quo  jure  against  a  claimant  putting  in  his  cattle,  but 
now  he  may  bring  either  an  action  of  trespass  or  a  special  action  on  the  case, 
which  in  practice  had  long  superseded  the  former  writ. 

Another  remedy  for  surcharge  was  a  writ  of  admeasurement  whereby  the 
number  and  description  of  cattle  might  be  reduced  within  their  proper 
bounds. (/)  This  writ  lies  either  where  a  common  appurtenant  or  in  gross  is 
certain  as  to  number,  or  where  a  man  has  common  appendant  or  appurte- 
nant to  his  land,  the  quantity  of  which  has  never  yet  been  ascertained  ;(.r) 
this  remedy,  though  deemed  to  be  the  most  effectual,  has  in  practice  given 
way  to  the  more  summary  and  expeditious  remedies  by  trespass  or  action  on 
the  case. 

The  lord  may  maintain  an  action  for  every  trivial  trespass,  because  of  the 
entry  and  trespass,  although  it  is  otherwise  with  the  commoner  •,{y)  and  it 
is  not  necessary  that  the  owner  of  the  soil  should  be  actually  in  posse'ssion 
to  enable  him  to  maintain  an  action  ;(1)  therefore,  where  a  reversioner  sued 
his  tenant,  lessee  of  the  manor,  for  wrongfully  inclosing  parcels  of  the  com- 
mon, held  that  the  action  was  well  brought. (z) 

(n)  3  Comm.  237.  (o)  See  ante,  §  317. 

(/j)  See  ante,  §  307.  (7)  2  Lev.  87.  (>)  14  East,  48D. 

(s)  Creach  v.  Wilmot,  2  Taunt.  1 60,  n. ;  S.  P.,  Hawke  v.  Bacon,  2  Taunt.  156. 
(0  Bract.  229  ;  Flet.  262:  Britt.  148. 

{x)  3  Comm.  238  ;  see  also  2  Inst.  86 ;  1  Fitzh.  N.  B.  12.5,  D. :  1  Roll.  Rep.  365  ;  2  Ld. 
Raym.  11«7.  (?/)  Sec  post,  §  356 ;  3  Comm.  237, 

(z)  Oxford  (Queen's  College,  &,c.)  v.  Hallett,  14  East,  489. 


(1)  Unless  it  be  trespass.     First  Parish  v.  Smith,  14  Pick.  297. 


226  crabb's   law   of    real   property. 

^  ^  *350.  In  the  case  of  strangers  putting  in  their  cattle,  there  is  no 
L  J  question  as  to  the  lord's  right  to  distrain  them  damage  feasant  ;[a\ 
so,  where  the  number  of  beasts  which  a  commoner  may  depasture  is 
limited,  it  is  also  settled  that  the  lord  may  distrain  ;(6)  but  where  the  com- 
moner bad  a  right  of  pasture  for  one  ox  only,  and  put  on  two,  it  was  held, 
that  the  lord  could  only  take  the  ox  put  on  last,  but  if  put  on  together  then 
he  might  have  his  choice  ;(c)  but  see  on  this  point  Hall  v.  Harding.((A  It 
was  held  formerly  that,  in  the  case  of  appendancy  the  lord  could  not  resort 
to  this  remedy  until  the  common  had  been  admeasured  ;(e)  so,  it  has  been 
said  that  the  lord  could  not  distrain  a  commoner's  cattle  whose  right  was 
regulated  by  couchancy  and  kvancy  ;[f)  and  so,  where  a  man  turns  on  his 
cattle  under  some  colour  of  right,  the  lord  cannot  distrain,  sed  seciis  where 
he  has  no  right  ;(g")  so,  the  lord  may  drive  the  cattle  of  the  commoner  with 
those  of  a  stranger  to  pound  upon  the  common,  in  order  to  sever  them, 
without  a  custom  for  so  doing  ;(/i)  and  if  the  cattle  of  a  stranger  be  on  the 
common  he  may  drive  them  out  or  impound  them  ;(A)  and  if  the  common 
be  surcharged,  he  may  detain  the  cattle  till  satisfaction  for  the  trespass 
without  a  prescription ;  for  distress  is  incident  to  the  drift  of  a  common, 
being  a  thing  of  common  right  for  the  preservation  of  the  common. (/)  As 
to  the  drift  of  a  common,  see  Dig.  P.  i.  ii.  tit.  Common.* 

As  to  the  injuries  to  the   lord's  estate  for  the  want  of  fences,  there  is 
an  old   writ   entitled  curia  daudenda,  now  disused,  when   a   neighbour 
neglected  to  inclose  his  land,  but  this  is  now  dealt  with  as  other  nuisances; 
-,  see  further  as  to  *remedies  post,  tit.  Injuries  to  Things  Real. 
L  J  Malicious   injuries   to  fences  generally  are  provided  for  by  the 

Malicious  Injuries  Act  7  &  8  Geo.  4,  see  Dig  P.  i.  tit.  Malicious  Injuries. 

351.  As  a  rule,  injuries  to  the  lord's  waste  cannot  be  inquired  of  at  a 
leet,  held,  therefore,  that  an  amercement  for  putting  geese  on  a  common 
could  not  be  distrained  for  under  the  authority  of  such  a  court  ;(/v)  so,  a 
presentment  at  a  leet  for  digging  coney-burrows  has  been  quashed  ;(/)  but 
the  by-laws  of  a  leet  may  be  enforced  where  there  is  a  custom  for  so 
doing.(»;j) 

The  jurisdiction  of  the  Court  of  Chancery  has  been  exercised  in  respect 
lo  commons,  not  only  in  enforcing  agreements  respecting  inclosures,  and  in 
aid  of  the  lord's  power  to  approve, (?i)  but  also  by  injunction  in  restraining 
excessive  improvements  ;(o)  preventing  injuries  to  young  trees  by  the 
coaimoaers'  cattle  ;(;;)  so,  in  cases  of  excessive  use  of  turbary, (5-)  and  other 

(.7')  See  ante,  §  317. 

(/i)  Dixon  V.  James,  1  Roll.  Abr.  665 ;  S.  P.,  Ellis  v.  'Rowles,  Willes,  633. 

(c)  Ellis  V.  Rowles,  sup.  {(l)  4  Burr.  2496. 

(e)  F.  N.  B.  123,  D.  (/)  3  V.'ils.  126. 

{rr^  lb.;  sec  also  Slopcr  v.  Albin,  1  Brownl.  171  ;  S.  C.  2  Roll.  Abr.  706;  Dixon  v. 
James,  1  Ficem.  273  ;  2  Saund.,  VVms.  ed.,  328. 

(A;  Tliomas  v.  Nichols,  3  Lev.  41.  (J)  Bromfield  v.  Tcigh, 2  Lev.  87. 

\k)  Wormleighton  v.  Ihirton,  Cro.  El.  448.  (/)  Ayres'  case,  T.  Raym.  160. 

(m)  Excester  (Earl)  v.  Smith,  2  Keb.  367. 

(w)  Daniel  v.  Ardern,  Toth.  118,  and  other  cases ;  see  Woolr.  L.  of  Com.  c.  xxv. 

(")  Trigg  V.  Payte,Toth.  175. 

{p)  Weeks  v.  Staker,  2  Vern.  301 ;  Arthington  \-.  Fawkes,  2  Vern.  356;  Anon.  Gilb. 
Eq.  Rep.  183 ;  S.  C.  Eq.  Ca.  Abr.  2li7, 

(jl)  Richards  v.  Noble,  3  Mcr.  373. 


INJURIES    TO    RIGHT    OF    COMMON.  227 

like  matters,  but  equity  will  not  interfere  where  the  plaintiff  has  clearly  his 
remedy  at  law.(r) 

2.  Injuries  affecting  the  Bights  of  the  Commoner,  and  their  Remedies. 

353.  Injuries  to  the  rights  of  the  commoner  may  be  either  by  disseisin 
or  disturbance. 

Where  a  commoner  is  ousted  of  common  appendant  or  *appurte-  ^ 
nant,  whether  of  pasture,  estovers,  or  other,  his  remedies  were  L  "J 
(before  the  3  &  4  W.  4,  c.  27,  s.  36,  abolishing  assizes)  by  an  assize  of 
novel  disseisin,  or  by  ejectment,(s)  but  now  by  ejectment  only  ;  and  the 
party  injured  will  recover  seisin  of  estovers,  although  the  owner  has 
stubbed  up  the  wood,  so  that  there  can  b^  no  more  {[t)  and  as  to  when 
assize  might  be  brought  and  Avhen  ejectment,  see  1  Freem.  447  ;  3  Keb. 
738  ;  1  Str.  54  ;  Adams  on  Ejectment,  19.  292;  also  further  post,  Injuries 
TO  Things  Real. 

353.  A  commoner  may  be  disturbed  in  the  enjoyment  of  his  common 
either  by  the  lord,  or  by  another  commoner,  or  by  a  stranger.  The  injuries 
which  he  suffers  from  the  lord  are  either  an  undue  approvement,  or  making 
undue  erections,  or  surcharging  the  common,  wrongful  distress,  obstructing 
the  way  to  the  common,  and  the  like.  As  between  one  commoner  and 
another,  the  most  common  injuries  complained  of  are  surcharging  the  waste, 
taking  unreasonable  estovers,  digging  pits,  and  the  like.  The  commoner  may 
be  disturbed  by  a  stranger,  either  by  his  putting  on  cattle  when  he  has  no 
right  so  to  do,  or  by  digging  or  carrying  away  stones,  clay,  &c. 

354.  The  remedies  which  the  commoner  has  are  either  by  his  own  act, 
by  action,  or  by  distress. 

If  the  lord  approves  without  leaving  sufficient  common,  the  commoner 
may  break  down  the  whole  inclosure  ;(i<)(l)  but  a  distinction  has  been  taken 
where  the  commoner  is  entirely  excluded  from  his  common  by  the  lord,  and. 
where  he  is  only  abridged  of  his  right,  for  in  this  latter  case  he  cannot  abate 
the  nuisance  or  redress  himself  by  his  ov/n  act  ;(>t)  *and  an  *„,.^-i 
information  has  been  granted  against  copyholders  for  pulling  down  L  'J 
inclosures  when  there  were  sufficient  gaps  for  them.(3/) 

So,  where  there  is  an  excess  of  coney  burrows,  or  other  holes  or  pits  on 
the  common,  the  commoner  cannot  himself  remove  the  nuisance,  not  even 
although  his  cattle  fall  into  the  pits,  for  he  can  neither  kill  the  coneys  or  fill 
up  the  pits,  his  remedy  in  that  case  being  only  by  action. (r) 

It  has  indeed  been  said  that  a  commoner  might  fill  up  pits  made  by  a 
stranger ;(«)  but  see  contra,  1  Brownl.  228,  also  ante,  §  323.     It  is,  how. 

(r)  Fines  v.  Cobb,  2  Vern.  116 ;  v.  Palmer,  Mos.  169  ;  S.  C,  Eq.  Ca.  Abr.  207 ; 

Dench  v.  Bampton,  4  Ves.  708.  (s)  Mary's  ca?e,  9  Co.  112;  Hob.  43. 

(/)  Hob.  43.  (m)  2  Inst.  88.  (x)  6  T.  R.  66 ;  see  ante,  §  324. 

(v)  R.  V.  Wyvill,  2  Mod.  66. 

{z    Anon.,  2  Leon.  201 ;  Coney's  case,  Godb.  122. 
{(i)  Howard  v.  Spencer,  1  Keb.  884. 


(1)  Or  take  estovers  in  any  other  land  of  the  lord,  if  he  make  a  colourable  lease  to 
deprive  the  tenant  of  his  rights.    Van  Rensselear  v.  Brice,  4  Paige,  174. 


228  crabb's  law  of   real  property. 

ever,  settled,  that  although  the  commoner  may  not  kill  the  coneys  put  on 
the  common  by  the  lord,  yet  he  may  kill  those  that  are  bred  in  a  neigh- 
bour's land,  and  cannot  therefore  maintain  an  action  against  the  owner  of 
the  conies,(6)  for  conies  being  ftrx  naturae  no  one  has  any  property  in 
them.(c) 

355.  So,  if  the  lord  sells  the  trees  so  that  the  commoner  is  deprived,  of 
his  estovers,  he  may  have  his  action,  but  he  cannot  by  his  own  act  redress 
the  wrong ;  therefore,  where  one  had  a  common  of  estovers  in  the  wood  of 
another,  h'e  could  not  take  away  any  part  of  that  which  was  cut,  but  should 
be  put  to  his  action  \[d)  and  this  applies  to  what  is  done  by  others  as  well 
as  by  the  lord  ;  the  commoner  cannot  himself  remedy  his  own  wrong,  there- 
fore he  cannot  justify  dispersing  the  ashes  cut  and  burnt  by  a  stranger, 
who  has  a  colour  of  right,  for  by  cutting  and  burning  them  he  has  a  pro- 
perty therein. (e) 

^  -,  356.  The  proper  and  usual  remedy  for  a  commoner  as  *against 
L  -•  the  lord  or  another  commoner  is  by  action  on  the  case  ;  but  he 
cannot  have  an  action  for  everj-  trespass,  for  if  it  be  so  small  that  he  has  not 
any  loss,  but  sufficient  common  remains  for  him,  then  he  shall  not  have 
any  redress. (/) 

357.  So,  a  commoner  cannot,  like  the  lord,  have  an  action  of  trespass,  for 
he  has  no  ownership  in  the  soil,  22  Ass.  pi.  48,  cited  Bro.  Com.  pi.  24, 
Smith  V.  Kerap,(g-)  although  in  this  latter  case,  which  was  trespass  for 
taking  fish  in  a  free  fishery,  the  plaintiff  had  judgment,  on  the  ground,  that 
it  should  be  intended  that  they  Avere  the  plaintiff's  own  fish.  In  another 
case,  where  the  lessee  of  a  copyholder  for  life  brought  trespass  vi  et  armis, 
for  breaking  his  close  and  cutting  his  trees,  it  was  held  that  the  copyholder 
was  as  much  tenant  of  the  trees  as  of  the  land,  and  that  if  H.  has  all  the 
thorns  in  such  a  place  for  estovers,  he  may  maintain  trespass  against  any 
one  that  cuts  them,  even  his  grantor,  and  in  such  case  need  not  aver  that  he 
burnt  them  ;(/()  this  decision  was  affirmed  in  the  Exchequer  Chamber,  but 
reversed  by  the  Lords,  on  the  ground  that  the  tenant  could  not  cut  them ; 
and  if  the  lord  could  not,  then  they  must  rot  on  the  ground. (/t) 

A  commoner  can,  however,  in  no  case  proceed  by  indictment  against  the 
the  lord,  but  by  action  only.(i) 

358.  As  to  the  remedies  of  one  commoner  against  another,  he  may  have 
a  writ  of  admeasurement,  an  action  on  the  case,  or  a  distress  against  his 
fellow  commoner,  according  to  the  circumstances. 

If  a  man  be  disturbed  by  another,  who  has  an  equal  right  with  himself  to 
the  profits  of  the  land;  either  by  surcharging  the  wastes,  taking  unreason- 

(h)  Bowlston  V.  Hardy,  5  Co.  104  ;  P.  C,  Cro.  El.  547;  S.  C,  Moor.  453. 

(c)  Hinsley  v.  Wilkinson,  Cro.  Car.  387. 

(</)  Sjjilman  v.  Hcrmitafrc.  1  Roll.  Abr.  40G. 

(e)  Rackham  v.  Jcsup,  3  VVils.  332,  recogrnisinor  Basset  v.  Mavnarfl,  Cro.  El.  819,  and 
Woadson  v.  Nawton,  2  Stra.  777.  (/)  9  Co.  113.  "  (?)  4  Mod.  186. 

(A)  Asbmcad  v.  Ranjrer,  2  Salk.  638  ;  S.  C,  1  Ld.  Raym.  551,  Com.  71  ;  11  Mod.  19; 
12  Mod.  380;  Holt,  1G2  ;  Fort.  152.  (.«)  WiUougliby's  case,  2  Leon.  117. 


INJURIES    TO    RIGHT    OF     COMMON.  229 

able  estovers,  turbary,  and  the  *like,  an  action  on  the  case  is  now  r^q,Q-i 
usually  preferred  to  a  writ  of  admeasurement.  L        -I 

In  the  case  of  surcharging  the  waste,  it  is  no  objection  to  one  commoner 
bringing  an  action  against  another,  that  he  himself  has  surcharged  the  com- 
mon ;  for  if  A.  infringe  the  right  of  common  of  B.,  it  is  necessary  thai  B. 
should  have  A.'s  right  ascertained,  otherwise  his  wrongful  act  would  in 
process  of  time  become  .evidence  of  his  right. (A:) 

If  a  writ  of  admeasurement  be  sued,  he  cannot  take  the  cattle  of  a  fellow 
commoner  before  the  admeasurement,  allliough  he  may  afterwards,  for 
"  where  there  is  a  colour  of  right  for  putting  in  the  cattle  a  commoner  can- 
not distrain,  because  it  would  be  judging  for  himself,  in  a  question  that 
depends  upon  a  more  competent  inquiry  ;  but  where  cattle  arc  put  upon  the 
common  without  any  colour  or  pretence  of  right,  the  commoner  may  dis- 
train them,  and  therefore  he  may  distrain  the  cattle  of  a  stranger."(/)  But 
this  rule  with  regard  to  distress  as  between  commoners  may  be  superseded 
by  special  agreement;  tliereforc,  where  there  was  a  mutual  agreement 
between  the  plaintilfand  defendant  that  neither  should  turn  any  sheep  or 
other  cattle  loose  into  certain  fields  for  twelve  years,  held  that  this  was  a 
release  or  extinguishment/jro  tempore  of  the  plaintiff's  right,  and  might  have 
been  pleaded  as  such.(7n) 

359.  A  commoner  as  against  a  stranger  may  have  an  ejectment,  an 
action  on  the  case,  or  a  distress. 

If  a  stranger  eat  the  common  of  a  freeholder,  the  latter  may  consider  it  as 
a  disseisin  and  bring  his  action  accordingly,  for  a  disseisin  of  common  is  the 
taking  away  of  the  profits  of  the  common  •,[n\  and  a  copyholder  may  have 
an  action  on  the  case  for  a  like  injury  ;(o)  so,  where  clay  was  dug  by  a 
stranger,  held  that  an  action  on  the  case  would  *lie  ;(/;)  but  when  p^nnnn 
clay  has  been  dug,  or  grass  cut  by  a  stranger,  it  is  not  competent  L  ^ 
for  the  commoner  to  carry  them  away,  because  when  once  severed  he  has 
no  property  therein  ;(5')  and  the  stranger  has  by  cutting  them  such  a  pro- 
perty therein  that  the  commoner  cannot  intermeddle  with  them  ;  and  there- 
lore,  where  a  stranger  had  burnt  a  load  of  feme  to  ashes,  the  commoner  was 
held  not  justified  in  scattering  the  ashes, (r)  see  ante,  §  355. 

The  proceeding  by  distress  against  a  stranger  was  recognised  in  an  early 
case,(s)  and  has  since  been  established  by  many  decisions  ;(^)  and  the  cattle 
of  a  stranger  may  be  distrained  damage  feasant,  wh.e\.h.e\-i\\ey  have  Qsc?i\)edi 
into  the  common  or  have  been  put  in  there  ;(?/)  and  when  a  common  of  pis- 
cary is  disturbed,  the  commoner  may  distrain  nets,  oars,  tackle,  &c.,  lUan- 
age  feasant,(x)  see  further  as  to  remedies  post,  Injuries  to  Things  Real 
AND  their  Remedies. 

(k)  Hobson  V.  TocUl,  4  T.  R.  71.  (I)  Tcr  Lord  Mansfield,  C.  J.,  4  Burr.  2426. 

(mi)  Whitcman  v.  Kinjr,  2  H.  Bl.  4.  (n)  Crogate  v.  Morris,  1  Brownl.  197. 

(o)  Terry  v.  Goodicr,  1  Roll.  Abr.  89. 

(/))  Bullen  V.  Siieene,  Godb.  343;  S.  C,  2  Roll.  Rep.  308  ;  Palm.  366. 
(V)  Stile  V.  Butts,  Cm.  El.  434.  (r)  Rackham  v.  Jcsup,  3  VVils.  332. 

(s)  15  H.  7. 12,  cited  Bro.  Com.  pi.  .39. 

(/)F.  N.  B.  128;  9  Co.  112;  Godb.  123;  Yclv.  104;  2  Brownl.  148;  Sty.  4829; 
1  Freem.  273 ;  2  Lev.  252.  (m)  Morris'  case,  Godb.  185. 

(.x)  Rcynell  v,  Ciiampernoon,  Cro,  Car,  228. 


230  CR  abb's    LAW     OF     REAL     PROPERTY. 

SECTION  YII. 

RIGHT    OF    WAY. 

§  360.  The  distinction  between  different  ways  and  the  property  which 
may  be  had  in  them  have  already  been  considered  under  the  head  of  corpo- 
real hereditaments. (?/)  The  incorporeal  right  known  by  the  name  of  right 
of  way,  the  subject  of  the  present  section,  comprehends — 

1.  The  nature  of  the  right  and  its  extent. 

2.  How  claimed.  , 
[*321]  *3.  User  of  the  right. 

4.  Extinguishment  of  the  right. 

5.  Suspension  and  revival  of  the  right. 

6.  Disturbance  or  interruption  of  the  right. 


I.  ^mtuvf  of  the  aXi'sUt  ant(  its  Svtcnt. 

§  3G1.  Definition.  |  §  361.  Is  an  Easement. 

3G2.  Appcndancy. 


§  361.  A  right  of  way  is  a  privilege  which  an  individual,  or  particular 
persons,  such  as  the  inhabitants  of  a  particular  place,  or  the  owners  or  occu- 
piers of  a  particular  house  or  parcel  of  land,  have  of  going  over  another 
person's  grounds. (1)  It  is  one  of  the  most  important  of  incorporeal  here- 
ditaments, in  which  one  man  has  an  Interest  and  a  right,  though  another 
man  be  the  owner  of  the  soil  where  it  is  claimed. (2) 

A  right  of  way  is  simply  an  easement  or  a  privilege  that  confers  no  inte- 
rest in  the  land,(r)  as  distinguished  from  a  right  to  take  something  out  of 
the  soil,  which  is  a  profit  «  prendre.{a) 

362.  In  Godley  v,  Frith(i)  it  was  held,  that  a  right  of  way  cannot,  like  a 
common,  be  pleaded  as  appendant,  for  it  is  an  easement,  not  an  interest ; 
but  in  Beaudely  v.  Brook, (c)  when  land  was  granted  with  a  way  thereto, 
this  was  held  to  be  quasi  appendant  to  it,  and  a  thing  of  necessity ;  so,  the 
present  form  of  pleading  is  "as  to  the  said  close  belonging  and  appertain- 
ing;" see  further  as  to  pleading,  post,  Ijjjuries  to  Things  Real  and  their 

{y)  See  ante,  §  102  ct  seq. 

(2)  Hewlins  v.  Shippam,  5  B.  &  C.  221 ;»  S.  C;  7  D.  &  R.  783. 

{a)  Manning  v.  Wasdalc,  5  Ad.  &  Ell.  764;'^  S.  C,  1  Ncv.  &  Per.  172;  see  also 
Blewctt  V.  Tregoning,  3  Ad,  &  Ell.  5.54 ; '  S.  C,  5  Ncv,  &  Man.  308 ;  Bailey  v.  Apple- 
yard,  3  Nev.  &  Per.  257.  (h)  Yclv.  159.  (c)  Cro.  Jac.  190. 

(1)  Rowland  v.  While,  1  Bailey,  53.     Lazaretto  Road,  1  Ash.  421. 

(2)  And  an  injury  to  the  right  is  not  within  the  jurisdiction  of  a  justice,  having  no  juris- 
diction wlicre  the  title  to  real  estate  is  pleaded.     Spear  v.  Bicknell,  5  Mass.  129. 

■■Eng.  Com,  Law  Reps.  xi.  207.  cjd.  xxxi.  433,  ^Id.  xxx.  151. 


HOW     CLAIMED.  231 

Remedies  ;  so,  in  an  early  case  it  was  held  that  an  easement  can  be 
claimed  only  in  respect  of  some  tenement ;  therefore,  wlien  one  granted  to 
^another  a  Avay  over  his  land,  to  a  certain  mill,  of  which  the  grantee  ^  -, 
was  not  seised  at  the  time  of  the  grant,  he  could  not  have''  main-  [*^"^J 
tained  an  assize  for  any  disturbance,  because  he  had  not  the  frank  tenement 
to  which  he  claimed  to  have  the  way  ;((/)  and  the  purchase  of  the  frank 
tenement  afterwards  would  not  have  enabled  him  to  bring  this  action  ;{d)  so, 
in  another  case,  if  one  have  a  way  appendant  to  his  manor  or  house,  he 
cannot  enjoy  it,  unless  in  respect  of  the  manor  or  house,  for  the  appendancy 
is  unalterably  attached  to  that  to  which  it  is  appendant  ;(e)  so,  a  way  appen- 
dant cannot  be  afterwards  turned  into  gross,  because  it  is  inseparably  united 
to  the  manor  or  land  to  which  it  it  is  incident;(/)  and  if  a  way  in  gross  be 
granted,  the  grantee  cannot  grant  it  over,  because  it  is  attached  to  the  per- 
son ;{§)  see  further,  infra,  §  363  et  seq.,  as  to  the  claiming  of  a  right  of  way. 


II.  ^m  tUimtti, 

1.  By  Prescript  ion. 


§  363.  Prescribing  in  a  que  Estate, 
Who  cannot  prescribe. 


365.  Setting  out  the  Termini. 
2.  By  Grant. 


§  364.  What  can  or  cannot  be  prescribed 

for. 


366.  What  is  a  Grant. 

Wlien  the  Way  passes  in  a  Grant. 
Way  appendant  or  in  gross. 

367.  Construction  of  Grants. 
Against  tlie  Grantor. 


36S.  In  other  Cases. 

369.  Extent  of  tlie  Grant  in  favour  of 

the  Grantee. 

370.  Construction  against   the  Gran- 

tor. 


3.  By  Reservation 
371.  Construction  of  Reservations. 

*4.  By  Custom.  r*323] 

§  372.  What  a  good  Custom, 


5.  By  Necessity. 


373.  In  case  of  a  Grant. 

In  case  of  a  Reservation. 
Grant  by  a  Trustee, 


375.  Old  and  New  Way, 


374.  Other  Cases  of  a  Way  by  Neces- 
sity. 
Extent  of  the  Rijjht. 


§  363.  There  are  five  ways  of  claiming  this  right,  that  is,  by  prescription, 

(r/-,  21  E.  3.  2,  pi.  5.  {e)  Br.  Clieniin,  pi.  14,  citin<r  5  H.  7.  7.         f  /")  5  H  7    7 

ig)  7  H.  4.  36.  B.  u  ;        .    .  <• 


232  crabb's  law    of    real   property. 

by  grant,  by  reservation,  by  custom,  and  from  necessity  ;(n  to  these  may 
be  added  the  claims  to  private  ways  given  by  Act  of  Parliament. 

1.  By  Prescription. 

Where  a  man  is  seised  in  fee,  he  may  prescribe  that  "  he  and  all  those 
whose  estate  he  hath  in  the  said  messuage,  have  from  time  immemorial  had 
a  foot-way,  &c.,"  (fls  the  case  mcty  be,^  and  this  is  called  prescribing  in  a  que 
estate  ;(/i)(2)  so,  a  man  may  prescribe  for  a  way  to  a  church,  market,  &c., 
through  the  close  of  another  ;(i)  or,  the  inhabitants  of  a  vill  may  prescribe 
for  a  way  to  a  parish  church  over  a  particular  field  ;(A-)  or,  as  it  seems,  a 
way  over  a  church-yard ;(/)  so,  for  inhabitants  to  have  a  crossway,  for  it  is 
an  easement  and  not  an  interest, (m) 

A  lessee  for  life  or  years,  or  tenant  at  will,  or  an  inhabitant  of  a  parish 
who  is  tenant  at  will,  cannot  prescribe  to  have  a  common  in  their  OAvn 
names,  because  of  the  meanness  of  their  estates,  but  they  may  prescribe  to 
have  a  way  to  church  over  another  man's  ground,  because  such  are  only 
easements  ;(n)  but  if  a  lessee  prescribe  for  a  way,  he  ought  to  make  a  good 
title  to  himself  from  his  lessor. (o)  But  it  is  not  necessary  that  the  party 
r*Q9i"l  pi'sscribing  for  the  right  of  *way  should  occupy  the  premises  in 
L  -'  respect  of  which  he  makes  the  claim,  provided  he  is  proved  to  be 
seised  thereof. (/j) 

364.  A  man  cannot  prescribe  to  have  a  way  over  another's  ground  from 
one  part  to  another ;((/)  but  from  one  part  of  his  own  ground  to  another  he 
may  claim  a  way  over  the  ground  of  another  person. (r)  It  has  however 
been  said,  that  if  a  man  have  right  of  way  to  the  church,  and  the  close  next 
to  the  house  over  which  the  way  leads  is  his  own,  he  cannot  prescribe  that 
he  has  a  right  of  way  from  his  house  to  the  church,  because  he  cannot  pre- 
scribe for  a  right  of  way  over  his  own  land,  sed  qiixre ;(s)  so,  a  claim  of  a 
prescriptive  right  of  way  from  A.  over  the  defendant's  close  unto  D.,  is  not 
supported  by  proof  that  a  close  called  C,  over  which  the  way  once  led,  and 
which  adjoins  to  D.,  was  formerly  possessed  by  the  owner  of  close  A.,  and 
by  him  was  conveyed  in  fee  to  another  without  reserving  the  right,  for 
thereby  it  appears  that  the  prescriptive  right  of  way  does  not,  as  claimed, 
extend  to  D.,  but  stops  short  at  C.(/) 

355.  In  claiming  a  Avay  by  prescription,  the  termini  of  the  way  should 

(A)  1  Inst.  113,  b.  (i)  Br.  Chcm.2.  (k)  Jordan  v.  Atwood,  1  Roll.  Abr.  936. 

(I)  Brook.  Prcscr.  pi.  91,  citing  18  E.  4,  8,  pi.  10.       {m)  Stone  v.  Wakcman,  Noy,  120. 

(«)  Dv.  72,  cited  G  Mod.  366.  (o)  2  Lufw.  1528. 

Ip)  Stott  V.  Stott,  16  East,  343 ;  see  also  Proud  v.  Hollis,  1  B.  &,  C.  8  ;»  S.  C,  2  D,  & 
R.  31.  (7)  6  Mod.  3.  (r)  Id.  4;  Carth.  4.")1. 

(s)  Slowman  v.  West,  Palm.  387 ;  S.  C,  2  Roll.  Rep.  397  ;  see  also  Wright  v.  Rattray, 
1  East,  377.  (<)  Wright  v.  Rattray,  sup. 

(1)  I>awton  V.  Rivers,  2  IM'Cord,  447.     Wriglit  v.  Freeman,  5  Har.  &,  Johns.  474. 

(2)  To  render  a  prescription  good,  it  must  appear,  1,  there  was  uninterruj)trd  user;  2, 
the  identity  of  the  thing  ;  3,  that  it  was  adverse.  Lawton  v.  M'Cord,  ante,  n.  1  ;  and  see 
post,  §  380,  n. 

»Eng.  Com.  Law  Reps.  viii.  7. 


BY    GRANT.  '        233 

be  set  out,  and  the  way  should  be  shown  to  pass  from  such  a  place  to  such 
a  place, (w)(l)  for  a  man  may  not  go  over  the  grounds  of  another,  but  to  the 
right  place  ;(u)  therefore,  if  a  man  claims  a  way  from  B,  to  the  rectory,  it  is 
not  good,  for  the  terminus  ad  qucin  is  uncertain  ;('a?)  or  that  it  goes  from  B. 
to  a  close  adjoining  to  a  messuage  in  B.,  without  saying  in  what  parish  the 
close  was,  for  though  the  messuage  was  in  B.,  perhaps  the  close  adjoinincr 
was  not;(j/)  *but  a  man  who  prescribes  for  a  way  through  the  close  ^^o—i 
of  B.  need  not  say  how  many  acres  it  contains  ;(z)  so,  it  is  not  ne-  L  J 
cessary  to  describe  all  the  closes  intervening  between  the  two  terjnini.fa) 

2.  By  Grant. 

366.  A  right  of  way  is  required  by  grant,  when  the  owner  of  a  piece  of 
land  grants  to  another  the  liberty  to  pass  over  his  grounds  to  go  to  church  or 
to  market,  and  the  hke;(6)(2)  so,  if  A.  covenants  that  B.  shall  enjoy  such 
a  way.(c)(3)  Unless  a  way  be  appendant  to  land,  a  grant  of  that  land  will 
not  include  the  way  without  express  words  ;((/)  so,  it  will  not  pass  under 
the  term  tenement  -,[(1)  but  if  it  be  appurtenant,  it  will  of  course  pass  under 
the  word  "appurtenances ;"  therefore,  if  a  man  seised  of  two  acres,  to  which 
a  way  is  appurtenant,  grants  one  acre  with  all  ways,  «S:c.,  the  way  shall  be 
granted  ;(e)  but  not  if  the  way  be  extinct,(o')(4)  unless  the  parties  appear  to 
have  intended  to  use  the  words  "appurtenances,"  or  "all  ways  appertain- 
ing," &c.,  in  a  sense  larger  than  their  ordinary  legal  sense  ;(/j)  or  unless  it 
be  a  way  of  necessity  which  will  pass  without  words  of  grant ;{()  or  that 
there  had  been  a  long  period  of  previous  enjoyment  of  the  way.(y)  So,  by 
the  words  "all  ways  thereunto  appertaining,"  in  an  underlease,  a  way  over 
the  soil  of  the  original  lessor  will  not  pass,  because  the  original  owner  only 
has  the  right  of  demising  all  ways  appertaining  to  his  property  ;(Jc)  but  it 

(w)  39  H.  6,  6.  ^ 

(c)  Hob.  190 ;  see  also  Coble  v.  Allen,  Hutt.  10.  (x)  Anon.,  2  Leon.  10. 

(y)  2  Lutw.  1528.  («)  Bro.  Chem.  6. 

(a)  Simpson  v.  Lewthwaite,  2  B.  »Sc  Ad.  226.» 

(h)  Holme  V.  Seller,  3  Lev.  305  ;  1  Ld.  Raym.  75;  BulL  N.  P.  74;  Senhouse  v.  Chris- 
tian,  1  T.  R.  560.  (c^  Holme  v.  Seller,  sup.  {d)  11  H.  6,  22,  B. 

(e)  Staple  v.  Haydon,  6  3Iod.  3.     See  also  Plowd.  170. 

(^)  Sandeys  v.  OlifF,  31oor.  467  ;  Grimes  v.  Peacock,  1  Bulst.  17  ;  see  also  WhaUey  v. 
Thompson,  1  B.  «fc  P.  371  ;  Clements  v.  Lambert,  1  Taunt.  205. 

(h)  Barlow  v.  Rhodes,  1  Cr.  &  ]M.  439.  (»)  Grimes  v.  Peacock,  sup. 

( 7)  Hinchcliife  v.  Kinnoul,  (Earl,)  5  Bing.  X.  C.  1  ;^  S.  C,  6  Scott,  650. 

(i)  Harding  v.  Wilson,  2  B.  &  C.  100  ;=  S.  C,  3  D.  &  R.  2S7. 

(1)  Hence  a  prescription  of  a  right  of  way  across  plaintiff's  land,  where  most  conve- 
nient to  defendant,  and  least  injurious  to  plaintiff,  is  bad  for  uncertainty.  Jones  v.  Per- 
cival,  5  Pick.  485. 

(2)  It  ceases  with  the  estate  with  which  it  is  conveyed  ;  as  if  dower  be  assigned  with  a 
right  of  way,  it  exists  only  so  long  as  the  estate  of  the  dowress.  Hoffman  v.  Savage,  15 
Mass.  130. 

(3)  Or  if  land  be  conveyed  bounded  by  a  way,  this  is  an  implied  covenant  that  such  a 
way  shall  exist.  This  rule  is  confined  to  such  ways  as  are  actually  in  existence  at  tlie 
time  of  the  conveyance,  if  any  such  there  were,  for  the  parties  are  presumed  to  have  had 
reference  to  the  facts.     Parker  v.  Smith,  17  Maes.  416. 

(4)  Nor  if  the  way  had  been  used  by  a  tenant  for  years,  under  an  express  provision  in 
the  lease.    Gayetty  v.  Bethune,  14  Mass.  54. 

»Eng.  Com.  Law  Reps,  xxiii.  59.  ''Id.  ixxv.  9.  'Id.  ix.  39. 


^4        crabb's  law  of  real  property. 

r*Qor"i  i^'g^t^  Ji^  that  case  have  *passed  by  the  words  "heretofore  used ;"(/)(!) 
L  ^-^  so,  if  by  such  an  underlease  a  way  be  granted  without  specifying 
any  breadth,  akliough  specified  in  the  originallease,  the  under-lessee  shall 
have  a  convenient  way  only  ;(A  so,  where  there  was  a  covenant  in  a  demise 
for  contributing  with  other  occupiers  of  the  lessor's  property  to  the  keeping 
up  paths,  &c.,  used  in  common  by  them,  and  it  was  proved  that  the  plaintiff 
had  always  used  the  path  in  question,  and  that  there  was  no  other  path  to 
which  the  covenant  could  apply,  it  was  held,  that  it  might  be  inferred,  par- 
ticularly from  the  use  of  the  word  "common,"  that  the  defendant  took  the 
soil  demised  to  him  subject  to  the  plaintiff's  right  of  way.(m) 

Where,  on  the  words  of  a  grant  in  a  lease,  it  is  uncertain  which  of  two 
ways  is  intended,  parol  evidence  will  be  admitted  to  show  which  the  grantor 
intended  to  grant  ;(n)  but  not  evidence  of  the  acts  and  declarations  of  the 
parties,  as  showing  where  the  way  was  intended  to  be  ;(n)  as  to  the  pre- 
sumption of  a  grant  from  user,  see  post,  §  380. 

But  there  is  a  distinction  between  a  grant  of  land  where  a  way  is  appen- 
dant, and  a  grant  of  a  way  in  gross,  for  in  the  first  case  a  way  would  pass 
in  a  parol  lease  for  less  than  three  years, (o)  because  whatever  is  incident  to 
land  will  pass  under  the  name  of  land  ;(o)  but  in  the  second  case  it  goes 
Vv'ith  the  person,  and  can  take  effect  by  deed  only.(;;)(2) 

367.  A  grant  is  always  construed  most  strongly  against  the  grantor ; 
therefore,  if  a  man  grant  premises  with  all  ways,  such  ways  as  are  ordina- 
rily used  shall  pass  ;  as  if  one  seized  of  B.  and  W.  use  a  way  through  W. 
to  B.,  and  then  grant  B.  with  all  ways,  the  way  through  W.  shall  pass  ;{q){3) 
and  this  will  be  deemed  to  extend  to  every  part  of  the  demised  premises, 
although  no  express  mention  be  made  of  them  in  the  lease  ;  therefore,  where 
r*qo7-i  tiy  ^  lease  certain  houses,  *with  a  piece  of  ground  which  was  part 
L  -'  of  an  adjoining  yard,  were  demised  to  a  tenant,  and  all  ways  with 
the  said  premises,  or  any  part  thereof  used  or  enjoyed,  the  lessee  was  held 
entitled  to  a  right  of  way  to  every  part  of  the  yard,  such  yard  having  been, 
at  the  time  of  granting  the  lease,  in  the  occupation  of  one  person,  who  had 
always  used  and  enjoyed  the  same  right ;(?')  so,  if  a  man  seised  of  Black- 
acre  and  AVhiteacre,  uses  a  way  through  Whiteacre  to  Blackacre,  and  after- 
wards grants  Blackacre  with  all  ways,  this  way  through  Whiteacre  shall 
pass  to  the  grantee. (s) (4) 

(Z)  Harding  v.  Wilson,  2  B.  &  C.  100  p  S.  C,  3  D.  &  R.  287. 
(m)  Oakley  v.  Adamson,  8  Biii<r.  3.56  ;"  S.  C,  1  M.  &  Sc.  510. 
(n)  Osborn  v.  Wise,  7  C.  &  P.  tGl.o  (o)  2  Roll.  Abr.  60. 

ip)  Slowman  v.  West,  Palm.  387.  (7)  Harding  v.  Wilson,  sup. 

(r)  Kooystra  v.  Lucas,  5  B.  «fc  A.  830 ;'  see  also  Oakley  v.  Adamson,  8  Bing.  356  ;^ 
James  v.  Plant,  4  Ad.  &.  Ell.  761.f 
<s)  Staple  V.  Haydon,  6  Mod.  3 ;  Com.  Dig.  tit.  Chemin,  (D.  3.) 

(1)  Gayetty  v.  Bethune,  14  Mass.  54. 

(2)  And  must  be  recorded  as  a  deed  of  land.    Hays  v.  Richardson,  1  Gill  &  Johns.  365. 

(3)  But  where  the  owner  of  three  closes.  A.,  B.,  and  C,  had  used  a  way  through  B. 
from  A.  to  C,  and  then  granted  A.  and  C.  with  their  appurtenances,  the  right  of  way  was 
held  not  to  pass,  for  it  could  not  be  an  easement  in  his  own  land.  Barker  v.  Clark,  4  N. 
H.  382. 

(4)  The  grant  will  always  be  construed  by  the  deed,  even  though  forty  years'  user  lias 

»Eng.  Com.  Law  Reps.  ix.  39.     iJd.  xxi.  316.     -^Id.  xxxii.  723.     <ild.vii.  274. 
-^Id.  xxi.  316.  'Id.  xxsi.  170. 


BY     GRANT.  235 

368.  A  mistake  of  the  gmntor  in  calling  ways  appurtenant,  wliich,  ia 
fact,  niay  be  only  convenient  and  accustomed  ways,  will  not  vitiate  the 
grant,  particularly  where  no  proof  was  given  of  any  other  way  in  alieno 
solo,  that  would  satisfy  the  words  of  the  grant ;(/)  and  where  the  word 
'•appertaining"  cannot  have  its  proper  signification  it  shall  have  such  sig- 
nification as  was  intended  by  the  parties. (?<) 

So,  a  grantor  will  not  be  permitted  to  defeat  his  own  grant ;  therefore, 
where  the  lessees  of  a  colliery  had  agreed  to  grant  to  the  lessees  of  a  nei"-h- 
bouring  colliery  a  license  to  use  a  right  of  way  which  the  former  enjoyed, 
and  the  owner  of  the  first  colliery  then  (improvidently  perhaps)  granted  the 
same  identical  right  of  way,  for  a  term  of  years,  to  the  second  lessee  ;  sub- 
sequently, hoAvever,  this  owner  became  possessed  by  assignment  of  the  first 
colliery,  and  of  the  way-leave,  when  he  wanted  to  remove  the  materials 
from  the  old  wagon  road,  but  on  an  application  to  Chanceiy  by  the  second 
lessees,  he  was  prevented  from  so  doing  in  contravention  of  his  own  deed  ;(u) 
but  in  cases  of  *this  kind,  the  Court  will  sometimes  grant  a  qvantum  p^qoc~i 
damnificavit  :{tv)  so,  where  one  granted  land  of  unequal  width,  L  J 
described  as  abutting  on  a  road  on  his  own  soil.  It  abutted  on  the  broadest 
part  of  the  road ;  but,  in  the  narrowest  part  of  it,  a  narrow  strip  of  the 
grantor's  land  intervened  between  the  road  and  the  premises  granted ;  it 
was  held,  that  the  grantor,  and  those  claiming  from  him  were  concluded 
from  preventing  the  grantee  from  coming  out  into  the  road  over  this  slip  of 
land;  the  grantor  having  said,  "This  land  abuts  on  the  road,"  it  was  not 
competent  to  him  to  say,  that  the  land  on  which  it  abutted  was  not  the 
road  •,[x)  so,  one  Avho  has  a  grant  of  an  occupation  way  may  declare  in  case 
against  the  owner  of  the  land  over  which  the  way  leads,  for  obstructing  him, 
although  it  be  proved  that  the  public  in  general  had  used  the  way  without 
denial  for  the  last  twelve  years. (y) 

369.  Under  the  grant  of  a  free  and  convenient  way  for  the  purpose  of 
carrying  coals,  (among  other  articles,)  the  grantee  has  a  right  to  lay  a 
framed  wagon-way,  or  any  such  way  as  m.ay  be  necessary  for  the  carrying 
of  that  commodity  ;(z)  so,  where  A.  granted  to  B.,  his  heirs  and  assigns, 
occupiers  of  certain  houses  abutting  on  a  piece  of  land  about  eleven  feet 
wide,  which  divided  these  houses  from  a  house  then  belonging  to  A.,  the 
right  of  using  the  said  piece  of  land  as  a  foot  or  carriage  way,  and  gave  him 
"  all  other  liberties,  powers,  and  authorities,  incident  or  appurtenant,  need- 

(0  Morris  v.  Edging-ton,  3  Taunt.  31.  {u)  Plowd.  170. 

(i;)  Newmarsh  vT  Brandling,  3  Svvanst.  99.  {lo) v.  White,  cited  3  Swanst.  108. 

(x)  Roberts  v.  Karr,  1  Taunt,  495.  {y)  Allen  v.  Ormond,  8  East,  4. 
(«)  Senhouse  v.  Christian,  1  T.  R.  560. 


been  more  extensive,  if  the  riglit  to  narrow  the  use  had  not  been  previouply  exercised  ;  as 
where  the  privilege  to  erect  back  buildings  was  reserved  but  not  used  for  forty  years, 
during  which  time  tlie  whole  space  in  rear  of  the  house  was  used  as  a  way.  Atkins  v. 
Boardman,  20  Pick.  301.  The  intention  of  the  party  is  to  govern;  thus  where  A.,  the 
owner  of  a  tract  near  the  river  and  an  island  opposite  used  for  grazing,  agreed  with  B., 
tlie  owner  of  the  bank  of  the  river,  for  a  way  to  be  laid  out  for  botli  of  them  to  low  water 
mark  in  the  direction  of  tlic  island,  and  through  A.'s  land  to  the  great  road  ;  it  was  lield,  tliat 
by  a  conveyance  of  the  island  with  its  appurtenances,  tills  right  of  waj'  passed ;  and  that 
B.  had  consented  to  the  way  being  appurtenant  to  both  tlie  ii-land  and  the  tract  on  the 
maiii  land  held  by  A.    Lazaretto  Road,  1  Ashmead,  417. 


236  crabb's  law  of  real  property. 

ful  or  necessary  to  the  use,  occupation,  or  enjoyment  of  the  said  road,  way, 
or  passage,"  held,  that  under  these  words  B.  had  a  right  to  put  down  a 
flagstone  in  this  piece  of  land,  in  front  of  a  door  opened  by  him  out  of  his 
house  into  this  piece  of  land,  as  the  same  was  granted  for  the  occupation  of 
^  ,  ,  a  dwelling-house,  and  the  grantee  ought  to  have  *every  thing  need- 
[*329J  ^^y  ^^^  g^^i^  occupation.(a)  Leases  generally  contain  the  words 
"heretofore  used,"  by  which  such  ways  would  pass  as  have  been  hereto- 
fore enjoyed ;  but  in  the  absence  of  these  words  or  words  to  the  like  effect, 
an  underlease  would  confer  nothing  more  than  a  convenient  way. (6) 

370.  On  the  other  hand,  under  the  grant  of  a  way  from  A.  to  B.  in, 
through,  and  along  a  particular  way,  the  grantee  is  not  justified  in  making 
a  tran°sverse  road  across  the  same  ;(f)(l)  so,  if  a  person  has  a  way  through 
a  close  in  a  particular  direction,  and  he  afterwards  purchases  other  closes 
adjoining,  he  cannot  extend  the  way  to  those  closes  ;((/)(2)  so,  a  person 
having  a  private  way  over  the  land  of  another,  cannot  when  the  way  is  be- 
come impassable  by  the  overflowing  of  the  river,  justify  going  on  the  adjoin- 
ing land,  although  such  land,  together  with  the  land  over  which  the  way  is, 
both  belong  to  the  grantor  of  the  way  ;(e)  it  is  otherwise  where  a  highway 
is  impassable  ;  but  that  is  upon  a  different  principle,  for  in  that  case,  if  the 
usual  track  is  impassable,  it  is  for  the  general  good  that  people  should  be 
entitled  to  pass  in  another  line,(e)  see  also  further  as  to  the  user  of  a  way, 
post,  §§  376,  377. 

3.  By  Reservation. 

371.  A  right  of  way  may  be  claimed  by  express  reservation,  as  where 
A.  grants  land  to  another  reserving  to  himself  a  way  over  such  land  ;  and 
the  construction  of  such  reservations  will  be  the  same  as  in  the  case  of 
grants,  for  what  will  pass  by  words  in  a  grant  will  be  excepted  by  like 
words  in  an  exception  ;(§•)  therefore,  where  a  grantor  conveyed  in  fee  farm 
land  in  the  manor  of  A.,  "  excepting  and  reserved  out  of  the  grant  all  mines 
^  -,  of  coals  within  the  fields  and  *territories  of  A.  aforesaid,  together 
['330J  ^^.^j^  sufficient  way  leave  and  stayleave  to  and  from  the  said  mines, 
with  liberty  of  sinking  and  digging  pits,"  held  that  under  this  reservation 
of  "a  sufficient  wayleave"  the  right  of  erecting  a  steam-engine,  and  other 
machinery  necessary  for  draining  them,  with  all  proper  accessaries,  passed 
as  incident  thereto  ;[h)  and  the  right  was  not  confined  to  such  ways  as  were 
in  use  at  the  time  of  the  grant,(/i)  sed  quaere  whether  such  a  reservation 

(o)  Gerrard  v.  Cook,  2  N.  R.  169. 

(b)  Harding  v.  Wilson,  2  B.  &  C.  lOO.s  (c)  Senhouse  v.  Christian,  1  T.  R.  o60. 

{d)  1  Roll.  Abr.  391 ;  1  Mod.  190.  (e)  Taylor  v.  Whitehead,  Dougl.  744. 

(g-)  Sheph.  Touchst.  100.  (/<)  Dand  v.  Kingscote,  6  M.  &,  W^  174. 


(1)  And  if  the  right  of  way  be  indefinite  in  the  grant,  the  grantee  has  the  right  to  elect 
the  location ;  and  when  that  is  made,  any  deviation  would  be  a  trespass.  Jones  v.  Percival, 
5  Pick.  487. 

(2)  Kirkham  v.  Sharp,  1  Whart.  323. 

sEng.  Cora.  Law  Reps.  ix.  39. 


BY     GRANT.  237 

gave  the  liberty  to  construct  a  railway  to  the  exclusion  of  the  owner  of  the 

soil.(A)(l) 

4.  By  Custom. 

372.  A  right  of  way  may  likewise  be  claimed  by  custom,  and  a  custom 
that  every  inhabitant  of  a  certain  vill  shall  have  a  way  over  certain  land  to 
church  or  to  market  is  good,  because  it  is  an  easement  onljr,  not  a  profit  ;(i) 
so,  a  lithe-owner  is  entitled  to  make  use  of  the  road  ordinarily  used  in  the 
occupation  of  the  close  in  which  the  tithe  is  taken  •,[k)  but,  he  cannot  justify 
carrying  his  tithes  home  by  any  other  road,  although  the  farmer  himself 
may  have  used  it  for  the  occupation  of  his  farm  ;(A')  so,  the  right  to  use  a 
towing-path  along  the  banks  of  navigable  rivers  is  founded  upon,  and  must 
be  ascertained  solely  by,  the  usage. (A 

5.  By  Necessity. 

373.  Lastly  a  right  of  way  may  be  claimed  from  the  necessity  of  the 
thing.  It  is  a  settled  rule  of  law  that  the  grant  of  a  thing  shall  carry  all 
things  included,  without  which  the  thing  granted  cannot  be  had  or  en- 
joyed ;(m)(2)  *therefore,  if  a  person  having  a  close,  bounded  on  ri,.oQn 
every  side  by  his  own  land,  grants  the  close  to  another,  the  grantee  L  -^ 
shall  have  a  way  as  a  necessary  incident  to  the  grant,  as  otherwise  he  can 
derive  no  benefit  from  the  grant  ;(n)  and  it  is  the  same,  though  the  close 
aliened  be  not  totally  inclosed  b}^  the  grantor's  land  but  partly  by  a  stranger's, 
for  the  grantee  may  not  go  over  the  stranger's  land  ;(o)  so,  in  the  case  of  a 

(A)  Dand  v.  Kingscotc,  6  M.  &,  W.  174,  (i)  Stone  v.  Wakeman,  Noy.  120. 

ik)  1  Bulstr.  103,  recognized  in  Cobb  v.  Selby,  2  N.  R.  466. 

(l)  Vernon  v.  Prior,  recognized  in  Ball  v.  Herbert,  3  T.  R.  253,  overruling  the  decision 
as  to  this  point,  R.  v.  Cluworth,  (Inliab.)  6  Mod.  163;  see  also  Pierce  v.  Ld.  Fauconberg, 

1  Burr.  292,  recognized  in  Ball  v.  Herbert,  sup.;  Miles  v.  Rose,  1  Marsh.  313.^ 

(m)  Hob.  234.  (n)  Oldfield's  case,  Noy,  1 23 ;  2  Roll.  Abr.  60,  pi.  1 7. 

(0)  2  Roll.  Abr.  60. 

(1)  In  case  the  way  be  not  impaired  for  the  uses  for  which  it  was  given,  the  grantee 
has  the  right  to  erect  an  arch  over  the  passage.  Atkins  v.  Boarduian,  20  Pick.  298. 
Jackson  v.  Allen,  3  Cow.  229. 

(2)  This  way  of  necessity  will  exist  in  case  of  a  levy  and  sale  of  part  of  the  land  front- 
ing the  street.  Pernan  v.  Wead,  2  Mass.  203,  but  it  must  be  strictly  of  necessity;  hence 
if  any  street  may  be  reached  tlirough  tlie  land  of  the  owner,  a  way  is  not  given  through 
the  part  taken.  M'Donald  v.  Lindall,  3  Raw.  495.  Even  though  the  way  which  is  left 
requires  great  expense  to  render  it  suitable,  (unless  there  be  fraud.)  Allen  v.  Kincaid,  2 
Fairfield,  150.  Or  if  a  communication  by  water  be  the  only  one,  it  does  not  follow  a  way 
of  necessity  exists  by  land.  Lawton  v.  Rivers,  2  M'Cord,  448.  Turnbull  v.  Rivers,  3  M'C. 
139  ;  if  the  right  exists  it  must  be  exercised,  to  cause  the  least  possible  injury,  and  may  be 
continued  within  reasonable  bounds  by  the  owner  of  the  land.  Russell  v.  Jackson,  2  Pick. 
577.  It  seems  such  a  right  can  only  exist  against  a  party  who  has  granted  it  by  implica- 
tion, and  that  a  purchaser  of  land  surrounded  by  that  of  strangers  would  not  thereby  ob- 
tain such  a  right,  Gayetty  v.  Bethunc,  14  Mass.  56.  The  burden  is  thrown  on  him  who 
creates  it — thus  Vi'here  an  execution  had  taken  part  of  the  land,  and  a  subsequent  execu- 
tion another  part,  thereby  excluding  the  residue  from  all  communication  with  the  street, 
it  was  held  the  right  of  way  existed  only  over  that  part  last  taken,  and  the  fact  that  a 
much  more  convenient  way  existed  over  the  former  was  immaterial.     Russell  v.  Jackson, 

2  Pick.  576.     Jetter  v.  Mann,  2  Hill,  S.  C,  Rep.  641. 

oEng.  Cora.  Law  Reps.  i.  240. 
November,  1846 16 


238  crabb's  law   of   real   property. 

reservation,  for  where  a  man  having  four  closes  lying  together,  sells  three 
of  them,  reserving  the  middle  close,  but  not  mentioning  expressly  anything 
as  to  a  way  for  himself,  here  the  law  will  reserve  a  way  for  his  benefit ;(/}) 
and  this  rule  is  not  affected  by  unity  of  possession  ;(q'^  and  the  rule  applies 
as  well  to  a  trustee  as  to  any  other  grantor. 

Thus,  where  a  person,  as  a  trustee,  conveyed  land  to  another,  to  which 
th.ere  was  no  access  except  over  the  ground  of  the  trustee,  it  was  held,  that, 
as  it  could  not  be  intended  that  the  trustee  made  a  void  grant,  it  must  be 
supposed  that  some  beneficial  interest  must  be  conferred,  and  hence  arose  a 
way  of  necessity  ;(r)  so,  in  the  case  of  a  lease,  if  land  be  granted  with  a 
way  thereto,  the  way  shall  be  quasi  appendant  to  it,  and  shall  pass  as  a 
matter  of  necessity,  although  not  expressed  in  the  lease,  for  the  land  cannot 
be  used  without  it.(s) 

374.  On  a  similar  principle  a  rector  may  enter  into  a  close  to  carry  away 
the  tithes  by  the  usual  road  ;  for  the  privilege  is  incident  to  the  right  of 
tithes  given  to  him  by  the  la\v;(f)  so,  if  one  have,  either  by  grant  or  pres- 
cription, a  right  to  wreck  throAvn  upon  another's  land,  he  has  of  necessary 
consequence  a  right  to  a  way  over  the  same  land  to  take  it;(a;)  and  as  the 
rsqqti-i  queen  has  a  right  of  way  over  ^another's  land,  her  grantee  shall 
L  -'  have  the  same ;  but  this  kind  of  way  cannot  be  pleaded  generally, 
without  shewing  the  manner  in  which  the  land  over  Avhich  the  way  is 
claimed  is  charged  with  it ;  for  a  plea  that  supposes,  that,  wherever  a  man 
has  not  another  way,  he  has  a  right  to  go  over  his  neighbour's  close,  is  bad, 
because  he  has  no  such  general  right ;(?/)  and  a  way  of  necessity  is  only 
commensurate  with  the  existence  of  such  necessity  ;  and  when  the  necessity 
ceases,  the  right  of  way  also  ceases  ;  therefore,  where  a  man  has  a  way  of 
necessity  over  certain  lands,  such  way  ceases  to  exist,  on  his  being  able  to 
approach  and  occupy  the  land  for  which  such  way  was  used,  by  passing 
over  his  own  soil;(z)(l)  and  where  a  way  is  claimed  of  necessity,  it  will 
be  a  good  plea  that  the  plaintiff  has  another  way  ;(a)  but  it  is  otherwise, 
when  a  way  is  claimed  by  prescription  or  grant. 

375.  Where  there  is  an  ancient  way,  it  should  be  first  claimed  ;  there- 
fore, where  A.  the  owner  of  a  close  situate  within  a  close  belonging  to  B., 
had  a  prescriptive  right  of  way  through  B.'s  close  to  his  own,  and  B. 
stopped  up  the  old  way  and  made  a  new  one,  which  was  afterwards  used, 
but  subsequently  was  also  stopped  up  by  B.,  in  an  action  by  B.  against  A. 
for  going  over  the  new  way,  it  was  held  that  A.  could  not  justify  using  this 

(p)  Clarke  v.  Cogge,  Cro.  Jac.  170 ;  S.  C,  Ow.  122. 

(9)  Button  V.  Taylor,  2  Lutw.  1487  ;  Packer  v.  Walsted,  2  Sid.  39  ;  also  infra,  §  384. 
(r)  Howton  v.  Frearson,  8  T.  R.  50.  (s)  Beaudely  v.  Brook,  Cro.  Jac.  189. 

(0  Cobb  V.  Selby,  2  B.  &  P.  466.  (x)  Anon.,  6  Mod.  149. 

(w)  Billiard  v.  Harrison,  4  M.  &,  S.  387;  see  also  1  Wm.  Saund.  323,  n.  (6.) 
(i)  Holmes  v.  Goring,  2  Bing.  76 ;"  S.  C,  9  Moore,  166. 

la)  Clarke  v.  Cofrge,  Cro.  Jac.  170 ;  Staple  v.  Heydon,  6  Mod.  4  ;  Com,  Dig.  tit.  Chemin, 
(D.  4.) 


(1)  M'Donald  v.  Lindal,  3  Raw.  495.     Taylor  v.  Hampton,  4  M'Cord,  108. 
bEng.  Com.  Law  Reps.  ix.  3"24. 


USER     OF     WAYS.  239 

way  as  a  way  of  necessity,  bat  that  he  should  either  have  gone  the  old 
way  and  thrown  down  the  inclosure,(l)  or  brought  an  action  against  B.  for 
stopping  up  the  old  way  ;(^)  the  new  way  was  only  a  way  of  sufferance 
during  the  pleasure  of  both  parties,  and  A.  by  stopping  it  up  determined 
his  pleasure  ;  so,  if  the  owner  of  a  close  in  which  there  is  an  ancient  way, 
ploughs  it  up,  leaving  a  new  way  in  another  part,  a  person  may  justify 
going  along  the  ancient  way,  for  he  is  not  ■•bound  to  go  the  way  *.jqq-i 
which  is  unploughed  ;(c)  yet  if  a  person  choose  to  go  along  the  L  J- 
new  way  he  may  justify  the  trespass,  because  the  plaintiff  had  stopped  up 
the  old  vvay.(f/) 

But  if  a  man  possessed  of  a  close  surrounded  by  others,  grant  that  close, 
the  grantee  shall  have  a  convenient  way  ;  he  is  not  bound  to  use  the  same 
way  as  the  feoffor  has  done  ;(e)  for  here  the  old  way  is  extinguished  and  a 
new  one  granted  from  the  necessity  of  the  case,  and,  consequently,  it  ought 
to  be  such  an  one  as  will  afford  the  most  convenient  and  reasonable  mode 
of  enjoying  the  premises  ;(^)  and  so  the  way  should  be  over  the  most 
convenient  part  of  the  grantor's  land  as  a  necessary  incident, (/i)  see  further 
infra,  §  376. 


III.  Hscr  of  S^aj)]3. 


§  376.  Prescriptive  Ways. 
Extent  of  the  Ri^ht. 

377.  Subject  to  Terms  of  the  Grant. 
License. 

378.  Convenience  of  Grantee. 


§  379.  Ways  of  Necessity. 

380.  Presumption  of  a  Grant  from  lovg 

User. 

381.  User  under  the  Prescription  Act. 


§  376.  As  to  prescriptive  ways,  a  person  is  justified  in  using  the  ancient 
way,  although  it  be  ploughed  up  and  a  new  way  left  ;(z  j  but  a  right  of  way 
for  agricultural  purposes  is  a  limited  and  qualified  right,  and  does  not 
necessarily  confer  a  right  to  use  such  way  for  general  and  commercial 
purposes  ;{k)  so,  a  right  of  way  for  all  manner  of  carriages  does  not  neces- 
sarily include  a  right  of  way  for  all  manner  of  cattle  ;(/)(2)  so,  where  a  man 
has  a  right  of  Avay  for  carriages  and  *cattle  to  a  particular  close,  he  ^oon 
cannot  extend  the  right  to  other  closes  ;(m)  therefore,  where  A.  L^^^J 
had  a  way  over  B.'s  ground  to  Blackacre,  and  drove  his  beasts  over  B.'s 
ground  to  Blackacre,  and  then  to  another  place  lying  beyond  Blackacre,  it 

(h)  Reynolds  v.  Clerk,  Willes,  282.  (c)  Horn  v.  Taylor,  Noy,  128. 

(rf)  Horn  v.  Widlake,  Yelv.  141 ;  S.  C,  1  Brownl.  212. 

(e)  Oldfield's  case,  Noy,  123.  (g-)  Edginorton  v.  Morris,  3  Taunt,  31. 

(A)  Staple  v.  Hcydon,  6  Mod.  3.  (i)  Oldfield's  case,  Noy,  123. 

(A-)  Jackson  v.  Staccy,  Holt,  N.  P.  Ca.  455.  (/)  Ballard  v.  Dysou,  I  Taunt.  279 

(m)  39  H.  6.  6,  cited  in  Bro.  Chem.  pi.  6 ;  1  Roll.  Abr.  391,  pi.  3. 


(1)  Wynkoop  V.  Burger,  12  Johns.  222. 

(2)  Where  the  full  and  free  right  of  way  was  granted  to  the  owner  of  the  adjoining 
house,  it  was  held,  the  grantor  could  not  extend  it  to  other  houses  afterwards  purchased, 
which  at  the  time  of  the  grant  did  not  participate  in  the  enjoyment.  Kirkham  v  Sharo' 
1  Whart.  323.  '  * 


240  CRABB3   LAW   OF  REAL   PROPERTY. 

was  held  tlmt  he  could  not  justify  using  the  way  to  ihose  lands,  which  he 
occupird  beyond  ;(m)  for  a  man  niig^hl  purchase  a  hundred  or  a  thousand 
acres  adjoining'  to  HIackacre,  lo  which  he  prescribes  lo  have  a  way,  by 
which  the  owner  of  land  would  lose  the  benefit  thereof  ;(n)  for  a  i 
tion  presupposes  a  errant,  and  ought  to  l)e  continued  according  to  tii»  ■...»  -d 
of  ita  original  creation  ;(«)  so,  if  a  man  liave  a  right  of  way  to  a  close  for 
some  purposes,  he  must  not  enlarge  it  to  other  purposes  ;(o)  but  the  extent 
of  the  right  is  a  question  for  the  jury  under  all  the  circumstance8.(p)  For 
this  reason  in  claiming  a  way  by  prescription  the  termini  of  the  way  should 
be  set  out  ;(y)  aUo  where  the  way  is  impa^^able.(r) 

.377.  In  the  case  of  grants  the  user  of  way  is  regulated  by  the  terms  of 
the  grants,  subject  to  the  construciion  of  the  Courts,  which,  as  in  other 
cases  of  grants,  is  most  strict  airainst  the  p-nintor.(i)  iU\  the  other  hand, 
the  grantee  is  bound  to  keep  witlim  the  terms  of  his  grant, (I  j  therefore  if 
one  seised  in  fee  of  a  pbce  in  a  town,  shut  out  from  the  street  by  a  gale, 
and  also  seised  of  a  messuage  and  piece  of  land  adjoining,  enfeotled  another 
of  the  messuage  and  piece  of  land,  and  granted  him  *•  ingress,  egri'ss,  and 
regress  in,  to,  and  l»eyond  the  same  premises  and  the  aforesaid  gate  and 
place,"  it  was  held,  that,  uuder  this  grant,  the  grantee  may  go  from  the 
street  through  the  gate,  and  over  the  place  to  the  messuage,  dtc,  but  not 
through  the  said  gate  or  place  lo  'other  places,  or  from  other  places 
L  •*•»**]  iQ  ii^.  sirvet  without  en:  '  .  the  messuage  &c.,  for  the  license  was 

made  appurtenant  lo  the  prem  ^:  inled.(/);2) 

So,  a  reservation  in  a  lease  of  a  right  of  way  on  foot,  for  horses  and  cattle, 
does  not  give  a  right  lo  carry  manure  ;(x)  and  it  has  been  held,  that  where 
there  is  any  material  alleration  in  the  sulwtance  of  the  ihintr.  in  rcs|)ecl  of 
which  the  riijht  is  claimed,  so  as  to  be  lo  the  preju«lice  of  the  jwrson  sup- 
plying the  ea.vement,  it  will  give  no  additional  righl,  then-fore,  where  H.  the 
owner  of  the  locua  in  quo,  and  also  of  certain  other  land  with  houses  and  a 
stable,  loft  and  chaise-house,  conveyed  lo  A.  a  part  of  ihe  premises,  reserv- 
ing to  himself,  his  heirs,  &c.,  occupiers  for  the  time  beinu  of  a  mes^ --. 

(not   conviyed.)  a  righl  of  way  and  possagc  over  the  /i»ff/«  in  quo 
stable  and  loft  over  the  same,  and  the  space  or  opening  under  the  loft,  and 
then  used  as  a  wood-house,  and  lo  the  chaise-house  standing  on  the  side  of 
the  locua  in  quo,  (the  stable,   loft,  wootl-house,  and  chc  "c  not  being 

conveyed,)  an<l  also  the   use  of  the   hcua  in   quo  in   i-M..,....a  with  A.,  his 
h<irs.  v^cc.  niul  lluir  tenants  for  the  time  being,  and  it  was  expressed  to  be 

(«)  Howrlv.  Kini:.  1  M.«l.  i:)0. 

(o^  \V.  bMcr  V.  Ilatli,  1  Frccm.  '247  ;  Sauiulcru  v.  Mour,  1  Roll.  Abr.  391,  pi.  2  ;  Laughloa 
V.  Word,  1  I.iilw.  Ill  ;  S.  C.  nom.  I^wlon  \.  Ward,  1  Ld.  Kayin.  75. 

(/»)  fowiinjf  V.  IliirsrinaoH,  4  .M.  \^  W.  'J15.  (9;  Sec  ante  ^365, 

(r)  S<v  nnti-.  ^  170.  (»)  See  ante,  (j  367. 

(0   l!.i<l.l<r  V.  n..lman.  1  R..11.  .M.r.  .TJl,  pi.  1. 
(x)  Uruuton  v.  Hall,  1  G.  At  D.  -'07. 


(1)  Tliu!»  on  ■  frrant  of  a  lot  with  a  ripht  of  way  acroM  another  lot,  the  irranlee  cannot 
jtistiiy  p-iaiiinir  partly  acrotw  tho  lot,  and  tJirn  rrlurninjf  to  anotlirr  point  on  ibe  aani«  •idc. 
ComstiK-k  V.  Van  Druwn,  5  Pick.  163.  Even  tliou((h  tl»e  wa j  become  impaaaiblc.  Miller 
T.  Bri.lol.  15  Pick.  553. 

(2)  Kirliam  v.  Sliarpo,  1  Whart.  333.     LazarcUo  Road,  1  A»h.  423. 


USE  U    OF    W  A  Y  S.  241 

the  intent  of  the  parties  that  the  whole  of  the  yard  comprehending  the  locus 
in  quo  should  be  open  and  undivided,  as  the  same  then  was,  and  be  used  in 
common  by  the  occupiers  of  both  messuages  as  the  tenants  thereof  had  been 
accustomed  theretofore  to  use  them;  afterwards  B.  built  a  cottage  on  the 
site  of  the  opening  under  the  loft,  and  it  was  held  that  the  reservation  of 
the  use  of  the  locus  in  quo  did  not  authorize  B.  to  use  it  for  the  purpose  of 
passing  to  the  newly  erected  cottage. (y) 

So,  where  there  is  a  license  to  use  a  certain  way,  there  must  be  a  reason- 
able use  of  it  ;  therefore,  where  one  let  a  house  reserving  a  way  to  ^^.„„„-, 
a  back  side,  it  was  held  that  the  *grantor  might  not  come  through  L  J 
without  request,  and  that  too  at  seasonable  hours. (r) 

378.  But  the  grantee  may  do  anything  within  the  terms  of  his  license, 
that  will  most  contribute  to  his  convenience,. and  best  serve  the  purposes 
intended,  as  if  it  be  a  grant  of  a  way  for  the  carriage  of  coals,  &c.,  the  gran- 
tee may  make  a  framed  wagon-way ;(«)  so,  if  he  have  a  right  of  way  for 
carriages  and  cattle,  his  servant  may  justify  going  with  the  cattle  of  his 
master,  (i) 

So,  as  a  right  to  repair  is  incident  to  the  grant  of  a  way,  the  grantee  may 
exercise  his  right  by  repairing  in  the  way  most  convenient  to  himself,  pro- 
vided he  does  not  thereby  do  any  thing  to  the  prejudice  of  the  granlor,(c) 
sec  ante,  §  lOi) ;  but  if  a  man  grants  a  way  through  his  close  to  another,  he 
is  not  bound  to  keep  it  in  repair,  unless  he  be  bound  by  express  stipulation 
or  by  prescription  ;(r/)  consequently,  if  the  way  be  foundrous,  the  grantee  is 
not  justified  in  going  over  the  adjoining  ground, (1)  and  what  is  said  in 
Comyn's  Digest  and  Blackstone's  Commentaries  on  the  authority  of  Sir  W. 
Jones,  290,  I  Ld.  Raym.  72.T,  1  Brownlow,  212,  and  2  Shower,  28,  must 
be  understood  of  public,  not  of  private  ways,(e)  see  also  ante,  §  170. 

379.  As  to  ways  of  necessity,  a  parson  in  carrying  away  his  tithes  may 
nse  the  ordinary  occupation  wav,  but  he  cannot  justify  using  any  other  road, 
though  used  by  the  farmer  himself.(/)  While  a  tenement  is  occupied  by  a 
tenant,  the  landlord  may  use  his  way  to  view  waste,  or  demand  rent,  or  to 
remove  an  obstruction  ;(^)  so,  where  trees  are  excepted  *in  a  lease,  r. „„..,-, 
the  lessor  has  a  power,  by  law  incident  to  the  exception,  to  fell  and  L  -^ 
take  away  the  trees,  although  this  power  is  usually  reserved  to  him  in  ex- 
press terms.(//) 

•380.  Grants  of  a  right  of  way  were,  before  the  Prescription  Act,  2  &  3 

(y)  Allan  v.  Gommc,  11  Ad.  &,  Ell.  159  f  S.  C,  3  P.  &  D.  581. 

(z)  Tomiin  v.  Fuller,  1  Vent.  4H. 

(«/)  Scnhouse  v.  Christian,  1  T.  R.  5G0  ;  sec  ante,  §  IGl). 

(/')  Lawton  v.  Ward,  sup.  (c)  Gerrard  v.  Cook,  2  N.  R.  109. 

('/)  Rider  v.  Smith,  3  T.  R.  709.  (r)  1  Wnis.  Saund.  322  a,  n.  (3). 

(f )  Cobh  V.  S,-lhv,  2  N.  R.  4(;»;;  Bosworth  v.  I/nnhrick,  3  Cwill   110!). 
(2)  Proud  V.  Hoflis,  1  n.  A:  C.  8  ;  S.  C.,-^  nom.  HoUis  v.  Proud,  2  D.  &,  R.  31 ;  see  al.^o 
B  rtie  V.  Beaumont,  16  East,  33;  Stolt  v.  Slolt,  Id.  313. 
(/»)  Li  ford's  case,  11  Ca  48. 


(1)  Miller  v.  Bri.-^tol,  12  Pick.  5.5  2. 
•'Eng.  Com.  Law  Reps,  xxxix.  213.     'Id.  viii.  7. 


242  crabb's  law    of   real  property. 

W  4,  c.  71,  (see  Dig  P.  iii.  tit.  Prescription,)  presumed  from  long  enjoy- 
ment, and  the  Courts  were  in  tlie  practice  of  leaving  it  to  a  jury  in  such 
cases  to  presume  a  grant,  where  its  commencement  could  not  be  otherwise 
accounted  for.(i)  Therefore,  in  Keymer  v.  Summer(A;)  thirty  years'  user 
of  a  way  was  held  to  afford  a  presumption  of  a  grant  or  license ;  in  another 
case  a  user  for  twenty  years  exercised  adversely  was  held  to  afford  sufficient 
grounds  for  the  jury  to  presume  a  grant  ;(Z)(1)  as  where  an  occupation  way 
had  been  assigned  under  the  award  of  commissioners  of  inclosure  to  one 
Joseph  W.  by  mistake  for  one  John  W.,  a  user  exercised  adversely  under 
this  mistake  was  sufficient  to  leave  it  to  a  jury  to  presume  a  grant,  which 
must  have  been  made  within  twenty-six  years,  as  all  former  ways  were  at 
time  extinguished  by  the  operation  of  an  inclosure  act;(/)  so,  where  a  de- 
fendant pleaded  that  his  deed  of  grant  had  been  lost,  the  jury  were  directed, 
that  if  they  thought  the  defendant  had  exercised  the  right  of  way  uninter- 
ruptedly for  more  than  twenty  years  by  virtue  of  a  deed,  and  that  that  deed 
had  been  lost,  they  should  find  for  the  defendant ;  and  that  direction  was 
held  to  bb  right. (m) 

But  the  presumption  of  a  non-existing  grant  might  be  rebutted  by  evi- 
dence showing  that  the  way  had  been  used  by  leave  or  favour  ;(?^)(2)  so,  in 
order  to  presume  a  grant  against  anjr  party,  it  was  necessary  to  show  that 
the  exercise  of  the  adverse  right  on  which  such  presumption  was  founded, 
was  against  the  party  capable  of  making  the  grant,  and  that  it  could  not  be 
^_-  ,  presumed  against  him,  unless  there  *were  some  probable  means  of 
L  -I  his  knowing  what  was  done  against  him  ;  the  landlord  therefore  was 
held  not  bound  by  the  acquiescence  of  the  tenant  without  his  knowledge, 
though  for  tAventy  years, (o)  and  whether  he  knew  or  not  of  the  adverse 
enjoyment  was  a  question  for  the  jury  •,(p'\  so,  the  knowledge  of  the  owner 

(t)  Doe  V.  Reed,  5  B.  &  A.  232.f 

(;;-)  Bull.  N.  p.  75.  (I)  Campbell  v.  Wilson,  3  East,  294. 

(m)  Livelt  V.  Wilson,  3  Bing.  115  ;',  S.  C,  10  Moore,  439. 

(«)  Campbell  v.  Wilson,  sup.  (o)  Daniel  v.  North,  11  East,  372. 

ip)  Dawson  v.  Norfolk  (Duke),  1  Price,  247  ;  Gray  v.  Bond,  2  B.  &  B.  667  ;  S.  C,  5 
Moore,  527. 


(1)  Twenty  years'  user  is  sufficient  to  presume  a  jrrant  of  a  rig-ht  of  way,  but  to  make 
it,  the  user  must  have  been  adverse,  Maverick  v.  Austin,  1  Bailey,  58  ;  not  by  pern)ission, 
express  or  implied,  astliroug-li  a  forest,  Gayctty  v.  Bcthune,  14  I\Iass.  53.  It  was  however 
held  in  Worrall  v.  Rhoads,  2  Whart.  427,  that  the  fact  of  the  land  being-  uninclosed  and 
woodland,  and  that  ways  used  indiscriminately  through  every  part,  did  not  effect  the  pre- 
sumption of  a  grant.  It  must  be  an  uninterrupted  user  of  the  same  way  not  variable  at^he 
pleasure  of  the  owner  of  the  soil,  Lavvton  v.  Rivers,  2  McC.  450  ;  Turnbull  v.  Rivers,  3  McC. 
138;  nor  is  an  occasional  landing  by  the  public,  State  v.  Duncan,  2  McC.  130  ;  Odiorne  v. 
Wade,  5  Pick.  421.  Sufficient  plowing  the  soil  and  declarations  by  the  owner,  at  tlie 
time,  in  the  absence  of  the  party  claiming  the  right,  are  evidence  contradictory  of  such 
right.  Barker  v.  Clark,  4  N.  H.  384.  The  erection  of  a  gate  at  the  time  a  way  is  opened, 
is  sufficient  to  rebut  the  presumption  of  the  grant  of  a  common  way.  Commonwealth  v. 
Newbcrr)%  2  Pick.  57.  The  extent  of  tbc  right  is  confined  by  the  mode  of  user.  Hart  v. 
Chalker,  5  Conn.  316,  unless  the  grant  be  shown,  in  which  case  it  will  be  confined  by  the 
terms  of  the  instrument,  not  liaving  been  adverse  thereto.  Atkins  v.  Bordman,  20  Pick. 
291.  This  presumiition  may  be  made  from  evidence  of  contribution  to  repairs  of  the  way, 
Lewis  v.  Carstairs,  6  Whart.  208  ;  and  such  right,  when  acquired,  cannot  be  destroyed 
bv  evidence  of  interruption  after  the  twenty  years  have  elapsed,  Cuthbert  v.  Lawton,  3 
McCord,  195;  White  v.  Crawford,  10  Mass. "l 89. 

(2)  See  preceding  note. 

'Eng.  Cora.  Law  Reps.  vii.  79.    ild.  xi.  57. 


I 


HOW     LOST,     DESTROYED,     OR    EXTINGUISHED.  243 

might  be  presumed  if  the  user  had  been  for  a  great  length  of  time, (17)  or  from 
other  circumstances,  as  where  the  lessees  of  a  fishery  had  publicly  landed 
their  nets  on  the  shore  for  more  than  twenty  years,  and  had  at  various  times 
dressed  and  improved  the  landing-place,  and  both  the  fishery  and  landing- 
place  originally  belonged  to  one  person;  it  was  left  properly  to  the  jury  to 
presume  a  grant  of  the  right  of  landing.(r) 

381.  The  enjoyment  of  an  easement  as  of  right  for  twenty  years  next 
before  the  commencement  of  the  suit,  within  the  2  &  3  W.  4,  c.  71,  means 
a  continuous  enjoyment,  for  twenty  years  next  before  the  commencement  of 
the  suit,  of  the  easement  as  an  easement  ;(.9)  therefore,  a  plea  of  forty  or 
twenty  years  is  not  supported  by  proof  of  a  user  for  a  period  of  fifty  years 
before  the  commencement  of  the  action,  with  the  exception  of  four  years 
immediately  preceding  it ;(/)  but  if  there  be  ten  j'ears'  enjoyment  of  a  right 
of  way,  and  then  a  cessation  under  a  temporary  agreement  for  another  ten 
years,  this  may  still  be  a  sufficient  enjoyment  of  the  old  right  for  twenty 
years  to  make  it  indefeasible  under  the  statute,  for  the  agreement  to  sus- 
pend the  enjoyment  of  the  right  does  not  extinguish  the  same,  nor  is  it 
inconsistent  therewith. (2<) 

Again,  in  order  to  establish  a  right  of  way  within' the  statute  it  must  be 
proved  that  the  claimant  has  enjoyed  "as  of  right"  *  for  the  full  ^-#000-1 
period  of  twenty  years  ;  the  way  must  have  been  enjoyed  openly,  not  L  -^ 
by  stealth  ;(a;)  so,  if  only  enjoyed  by  permission  of  the  occupier  of  the  land, 
no  title  would  be  acquired,  because  it  was  not  enjoyed  "  as  of  right  ;"(^') 
so,  for  the  same  reason,  the  claim  would  be  defeated  if  unity  of  possession 
were  proved  during  any  part  of  the  twenty  years,  for  then  the  claimant 
would  not  have  enjoyed  "as  of  right"  the  easement,  but  the  soil  itself ;(?/) 
and  so,  likewise,  it  must  have  been  enjoyed  without  interruption, (z)  see 
further  infra,  §  394. 

So  a  claim  under  this  act  may  be  defeated  in  the  same  manner  as  a^similar 
claim,  arising  by  custom,  prescription,  or  grant,  might  have  been  defeated. (a) 
See  further  as  to  Prescription,  post,  Title  to  Things  Real,  and  Dig.  P. 
iii.  tit.  Prescription. 

As  to  the  effect  of  non-user,  see  infra,  §  382. 


IV.  i^oto  lost,  tJcstrowc^,  or  cptfttsutsUrty. 

r 

1.  Loss  by  Non-user,  4'C. 

§  382.  In  what  Cases. 
383.  By  Change  of  the  Place  in  case  of  Prescriptive  Ways. 

(9)  Davies  v.  Stephens,  7  C.  &,  P.  570.h  (r)  Gray  v.  Bond,  sup. 

(s)  Bright  V.  Walker,  1  C,  M.  &.  R.  211  ;  S.  C,  4  Tyrw.  508. 
(0  Parker  v.  Mitchell,  11  Ad.  &  Ell.  788  ;*  S.  C,  3  P.  &  D.  655. 
(u)  Payne  v.  Sheddcn,  1  Mood.  &,  Rob.  383.  (x)  Briirht  v.  Walker,  sup. 

(y)  lb. ;  and  see  also  Clay  v.  Thackrah  or  Thackeray,  9  C.  &.  P.  47  ;><  S.  C,  2  M.  <& 
Rob.  244.  (->)  Onlcy  v.  Gardener,  4  M.  &.  W.  497. 

(c)  Bright  V.  Walker,  sup. 

i>Eng.  Com.  Law  Reps,  xxxii.  634.     'Id.  xxxLx.  229.     ^id.  xxxviii.  31. 


344  CRABb's     LAW    OF     REAL     PROPERTY. 

2.  Extinguishment  by  Unity  of  Possession. 
384.  In   case  of   Purchases,   &c.,  of   the  i  386.  Unity  of  Possession    under  the  Pre- 


Land 

385.  New  creation  of  a  Way, 

386.  Ways  of  Necessity  not  extinguished 


scription  Act. 
387.  A  private  Right  of  Way  not  merged 
in  the  Public  Right. 


388.  Right  not  destroyed  by  alteration  of  Estate 

3.  Extinguishment  of  Ways  under  Acts  of  Parliament. 
389.  Inclosure  Acts.  |  390.  Highway  and  Turnpike  Acts 


r*340]  *1.  Loss  by  Non-user,  S,'c. 

§  382.  A  right  of  way  may  be  lost  or  destroyed  either  by  non-user,  or  by 
a  change  of  the  thing  in  respect  of  which  the  right  is  claimed. 

A  right  of  way,  like  a  right  of  common,  is  something  collateral  to  the 
land,  and  therefore  not  regularly  divested  by  non-user;  but  as  from  long 
user  of  a  right  of  way  a  grant  might  be  presumed, (6)  so,  from  a  long  for- 
bearance to  exercise  the  right,  a  release  might  be  presumed  ;(c)(l)  and  as 
the  right  could  only  be  acquired  by  twenty  years'  enjoyment,  so  it  ought 
not  to  be  lost  by  disuse  for  a  less  period. (f/)(2) 

383.  It  has  long  been  settled  that  circumstantial  variations  will  not 
destroy  a  prescription  ;(3)  therefore,  a  prescription  to  take  water  was  not 
destroj'^ed  by  changing  a  fulling-mill  to  a  grist-mill,  provided  no  prejudice 
thereby  arose  by  diverting  and  stopping  the  water,  and  rendering  it  different 
from  what  it  was  before  ;(e)  see  also  as  to  estovers,  ante,  §  299.  So,  a  pre- 
scriptive right  of  way  to  a  public  towing-path  on  the  banks  of  a  navigable 
tide-river,  is  not  destroyed  by  that  part  of  the  river  adjoining  the  towing- 
path  having  been  converted  by  statute  into  a  floating  harbour,  although  such 
towing-path  was  thereby  subject  to  be  used  at  all  times  of  the  tide,  whereas 
before  it  was  only  used  at  those  times  when  the  tide  was  sufficiently  high 
for  the  purpose  of  navigation  ;(o-)  and  such  prescription  is  not  destroyed  by 
a  clause  in  the  statute,  whereby  the  undertakers  of  the  work  were  authorized 
to  make  a  towing-path  over  the  land,  comprising  the  towing-path  in  ques- 
tion, on  paying  a  compensation  to  the  owner  of  the  soil.(^^) 

-       *384.  Ways  may  be  extinguished  either  by  unity  of  possession. 
I  -'  or  under  acts  of  Parliament. 

(6)  See  ante  §  180. 

(c)  Doe  V.  Hildcr,  2  B.  <fe  A.  791.  {(I)  Moore  v.  Rawson,  3  B.  &,  C.  339.1 

(e)  Luttrel's  case,  4  Co.  86.  (g)  R.  v.  Tippett,  3  B.  &  A.  193.™ 


(1)  This  gives  presumption  of  a  release,  but  is  not  a  bar  in  law  to  an  action.  Wriglit 
V.  Freeman,  5  H.  &  Johns.  476.  It  will  even  afford  a  presumption  against  the  public. 
Beardslee  v.  French,  9  Conn.  128.  But  adverse  possession  inconsistent  with  the  right  is 
a  bar.     Yeakle  v.  Nace,  2  Whart.  131. 

(2)  Emerson  v.  Wiley,  10  Pick.  316. 
(3;  Lawton  v.  Riveis,  2  M'C.  450. 

'Eng.  Com.  Law  Reps.  x.  99.     "-Id.  v.  258. 


HOW  LOST,  DESTROYED  OR  EXTINGUISHED.     245 

2.  Extinguishment  by  unify  of  Possession. 

Unity  of  possession  of  the  close  where  a  private  way  exists,  with  the 
close  to  which  such  a  way  is  appurtenant,  or  which  gives  the  right  of  way, 
causes  an  extinction  of  the  same,  as  if  a  man  have  a  way  over  the  close  of 
another,  and  he  purchase  that  close,  the  way  is  extinguished  by  the  unity 
of  possession. (A) 

So,  where  one  had  a  crossway  by  prescription  to  go  to  Whiteacre  over 
Blackacre,  and  then  he  purchased  Blackacre,  and  subsequently  enfeoffed  a 
stranger,  adjudged  that  the  way  was  gone;(i)  for  in  such  cases  the  greater 
benefit  drowns  the  less,(A-)  which  consequently  ceases  to  exist ;(/)  on  the 
same  principle,  where  one  had  a  close  and  a  wood  adjoining  to  it,  and  time 
out  of  mind  a  way  had  been  used  over  the  close  to  the  wood  ;  and  he 
granted  the  close  to  one  and  the  wood  to  another,  held  that  the  grantee  of 
the  wood  should  not  have  the  way ;  and  as  the  grantor  had  not  reserved  it 
to  himself  it  was  extinguished  ;(??i)  and  where  in  the  case  of  a  partition  of 
a  mill  and  a  way,  the  way  was  assigned  to  one,  this  was  held  not  to  be  an 
extinguishment,  but  a  new  grant. 

Ahhough  an  existing  way  will  pass  under  the  word  "appurtenances," 
yet,  according  to  the  legal  sense  of  this  word,  an  easement  which  has 
become  extinct,  or  which  does  not  exist  in  point  of  law,  by  reason  of  unity 
of  possession,  does  not  pass  ;(n)  therefore,  where  a  testator  being  seised  in 
fee  of  the  adjoining  closes,  A.  and  B.,  over  the  former  of  which  a  way  had 
immemorially  been  used  to  the  latter,  devised  B.  *with  the  appurte-  p*342"l 
nances,  held,  that  the  devisee  could  not,  under  the  word  "appurte-  L 
nances,"  claim  a  right  of  way  over  A.  to  B.,  as  no  new  right  of  way  was 
created,  and  the  old  one  was  extinguished  by  the  unity  of  seisin  in  the 
devisor  ;(o)  see  also  Clements  v.  Lambert, (p)  which  is  the  case  of  a 
common,  also  Barlow  v.  Rhodes, (</)  which  relates  to  the  word  "appurte- 
nances." 

385.  If  the  grantor  wish  to  revive  or  create  anew  such  a  right,  he  must 
do  it  by  express  words,  or  introduce  the  terms  "  therewith  used  and 
enjoyed,"  in  which  case  easements  existing  in  point  of  fact,  though  not  in 
point  of  law,  would  vest  in  the  grantee  ;(r)  but  it  has  been  held  that  a  grant 
of  Whiteacre  and  Blackacre,  "with  all  ways  used,  occupied,  or  enjoyed 
therewith,"  extends  to  ways  used,  &c.,  over  other  lands  of  the  grantor,  but 
does  not  convey  to  the  grantee  a  right  to  ways  used  to  and  from  one  of  the 
parcels  over  the  other  of  them;  therefore,  where  A.  and  B.,  coparceners, 
convey  to  C.  Whiteacre  and  Blackacre,  together  with  all  ways  therewith 

(A)  21  E.  3.  2;  21  Ass.  pi.  1  ;  11  H.  4.  15  ;  D\'.  295  ;  Palm.  446  ;  Latch.  154  ;  1  Roll. 
Abr.  935,  (i)  Heiiratc  v.  Williams,  Noy,  119. 

(A-)  Shury  v.  Piffott,  3  Bulst.  340.  (/)  Latch.  153. 

(m)  Dell  V.  Babthorpe,  Cio.  El.  300;  Bro.  Chemin,  pi.  13,  citing  3  H.  6.  31;  but  sec 
contra,  20  E.  3.     Admeasurement,,  8. 

(n)  Grymcs  v.  Peacock,  1  Bnlst.  19  ;  Saundcys  v.  Oliff,  Moor.  467. 

(o)  Whallcy  V.  Thompson,  1  B.  &  P.  371.  ( p)  1  Taunt.  205. 

(q)  1  Cr.  &  M.  439  ;  see  also  3  Taunt.  30. 

(r)  Plant  v.  James,  4  Ad.  &  Ell.  761  ;"  S.  C,  2  Nev.  &  Mann.  517. 

"Eng.  Com.  Law  Kcps,  xxxi.  170. 


246  crabb's  law   of   real   property. 

usually  held,  used,  occupied,  and  enjoyed  as  to  Whiteacre  and  the  appurte- 
nances, to  the  use  of  A.  and  his  heirs,  and  as  to  Blackacre  and  its  appurte- 
nances to  the  use  of  B.  and  his  heirs,  held,  that  the  way  used  before  the 
partition  from  Whiteacre  over  Blackacre  does  not  vest  in  A.  under  this 
deed.(r)  But  commissioners  of  partition  may  award  a  right  of  way  over 
the  lands  of  one  party  to  the  lands  of  another  party  interested  in  the  parti- 
tion.(s) 

386.  A  distinction  however  has  been  taken  between  ways  of  mere  ease- 
ment and  ways  of  necessity,  for  in  the  latter  case  the  right  is  not  lost;(l) 

-.  therefore,  where  one  had  a  way  *appendant  to  his  house,  and  then 
L  J  he  purchased  the  close  where  his  right  lay,  after  which  he  enfeofied 
another  of  the  close,  but  continued  to  use  his  way,  held,  in  an  action  against 
him  by  the  feoffee,  that  the  feoffer,  would  lose  the  benefit  of  his  house, 
unless  he  were  permitted  to  have  the  use  of  this  way  ;(/)  so,  ways  to  the 
church  or  the  market  being  ways  of  necessity  will  not  be  extinguished  by 
unity  •,{x)  and  so  it  was  adjudged  in  another  case,  where  by  the  plea  it 
appeared  that  the  way  was  necessary  ;(?/)  so,  where  one  W.  purchased  a 
close  A.,  with  a  right  of  way  to  it  over  another  close  B.,  and  then  purchased 
the  latter  close,  and  subsequently  a  third  close  C,  adjoining  to  that  lo  which 
the  way  belonged,  by  which  last  purchase  he  was  enabled  to  enter  the  first 
close,  without  availing  himself  of  the  way  as  it  existed  before  the  unity  of 
possession  ;  he  then  sold  the  close  B.,  over  which  the  right  was  originally 
used,  to  the  plaintiff",  and  afterwards  parted  with  the  two  others  to  the 
defendant,  held,  that  the  way  would  have  been  extinguished,  if  claimed  as 
a  way  by  prescription,  but  being  a  way  of  necessity  it  remained  ;(z)  but  a 
way  of  necessity  is  limited  by  the  necessity  that  created  it,  and  when  the 
necessity  ceases,  the  right  ceases. («) 

Under  the  Prescription  Act  a  claim  of  a  Avay  may  be  defeated  by  unity 
of  possession  within  the  twenty  years,  in  the  same  manner  as  under  the 
old  law.  (6) 

387.  A  person  may  have  a  right  of  way  in  a  road  after  it  is  become  a 
highway,  and  the  private  right  will  not  become  merged  in  the  public  right ; 
therefore,  where  one  had  a  grant  of  an  occupation  way,  held,  that  he  might 
have    an   action   against   the  owner   of   the   land  over    which   the    way, 

-.  *led,  for  obstructing  it,  although  it  Avere  proved  that  the  public  had 
'L         -^  used  the  way  without  denial  for  the   last  twelve  years,  the  Court 

(r)  Plant  v.  James,  4  Ad.  &  Ell,  761  ;»  S.  C,  2  Nev.  &  Mann.  517. 
(s)  Lister  v.  Lister,  3  Y.  &  Coll.  540. 
{I)  Jordan  v.  Attwood,  Ow.  121. 

(r)  Surrey  v.  Pig^ott.  Noy,  84;  S.  C,  Balstr.  340;  see  also  Latch.  154;  Poph.  172  ; 
Palm.  446  ;  Cro.  Jac.  170. 

(v)  Dutton  V.  Taylor,  2  Lutw.  1489.  (z)  Buckley  v.  Coles, 5  Taunt.  311.P 

(ii)  Holmes  v.  Goring,  2  Blng.  76  ;'i  S.  C,  4  J.  B.  Moore,  166  ;  sec  ante,  §  374. 
(b)  See  ante,  §  381. 

(1)  Grant  v.  Chase,  17  Mass.  448.    Unless  the  necessity  ceases  in  any  way.    M'Donal 
V.  Lindal,  3  Rawle,  495. 

oEng.  Com,  Law  Reps,  ixxi.  170,    Pid.  i,  115.    <ild.  ix.  324. 


HOW     LOST,    DESTROYED    OR    EXTINGUISHED.  247 

being  of  opinion  that  the  plaintiff  might  rest  his  title  under  the  deed,  and 
■need  not  resort  to  the  general  right,  (c) 

388.  So,  a  way  shall  not  be  destroyed  by  a  change  of  tenure ;  therefore, 
where  a  copyholder  had  a  way,  time  out  of  mind,  over  the  land  of  another 
copyholder,  and  purchased  the  inheritance  of  jiis  copyhold,  which  operated 
as  an  enfranchisement  of  his  estate,  yet,  nevertheless,  the  easement  was  not 
extinguished. (fZ)  But  a  way  of  necessity  will  become  extinguished,  like 
any  other  way,  when  the  necessity  ceases. (c) 

3.  Extinguishment  of  Tfays  under  .^cts  of  Parliament. 

389.  Under  the  General  Inclosure  Act,  41  G.  3,  c.  109,  s.  11,(/)  it  is 
declared  that  all  ways  which  shall  not  be  set  out  by  the  commissioners  shall 
be  extinguished,  and  where  a  private  Inclosure  Act  does  not  vary  the  terms 
of  the  General  Act,  and  commissioners  in  their  award  do  not  notice  a  road 
running  over  inclosed  lands,  such  way  is  extinguished  by  the  operation  of 
the  General  Act ;  therefore,  where  a  plaintiff  having  an  allotment  made  to 
him  by  a  commissioner  under  an  Inclosure  Act,  of  land  over  which  the 
d^endant  had  a  private  right  of  way  before  the  passing  of  the  Act,  but 
which  way  was  not  noticed  among  those  set  out  by  the  commissioner,  the 
plaintiff  may  justify  stopping  up  such  way  without  any  directions  from  the 
commissioner  for  that  purpose, (o-)  for  the  statute  does  not  affirm  another 
way  to  be  set  out  in  lieu  of  every  old  one  ;(/«)  but  where  commissioners  had 
no  power  *under  the  General  or  Particular  Act  to  stop  up  a  way  j.^,oak-\ 
over  old  inclosures,  and  did  not  by  their  award  set  out  any  new  L  -^ 
way  over  the  waste  land  inclosed,  held,  that  an  old  footway  passing  from 
one  highway,  over  wastes  to  old  inclosures,  into  another,  existed  as  it 
formerly  did.(t) 

But  where  by  an  Inclosure  Act  a  Avay  could  not  be  extinguished  without 
the  concurrence  of  two  justices,  held,  that  a  Avay  was  not  extinguished  for 
want  of  such  express  concurrence  ;(A-)  and  this  Avas  deemed  to  extend  to  all 
roads  public  or  private. (/)  So,  where  under  an  Inclosure  Act  an  appeal 
was  given  in  all  cases,  except  where  the  determination  of  the  commissioner 
was  declared  conclusive  by  the  General  or  Particular  Inclosure  Act,  and  a 
commissioner  set  out  a  private  road,  which,  upon  complaint,  was  disallowed 
by  the  commissioner  and  one  justice,  held,  that  appeal  was  not  taken  away, 
because  the  order  was  by  the  commissioner,  which  is  not  said  in  the  act  to 
be  final. (m) 

(c)  Allen  V.  Ormond,  8  East,  4. 

(d)  Emson  v.  Williamson,  cited  11  Vin.  Abr.  tit.  Extinguishment,  440. 

(e)  Holmes  v.  Gorinjr,  2  B'lng.  76;'   sec  ante,  §  384. 
(/)  See  Dig.  P.  ii.  tit.  Commons  (Inclosure.) 

(e)  White  V.  Reeves,  2  J.  B.  Moore,  23.«= 

Ih)  R.  V.  Parish  of  Dean  (Comm.  of  Inclos.),  2  M.  &,  S.  80. 

(?)  Thackrah  or  Thackray  v.  Seymour,  1  Cr.  &.  Mee.  18;  S.  C,  3  Tyrw.  87. 

(k)  Harher  v.  Rand,  9  Price,  58. 

(l)  lb.,  recognised  in  Logan  v.  Burton,  5  B.  ife  C.  513.f 

(?n)  R.  V.  Yorkshire,  W.  R.  (.Justices),  2  B.  &,  C.  228  ;?  see  also  further  as  to  the  con- 
.struction  of  Inclosure  Acts,  Harper  v.  Charlcsworth,  4  B.  &  B.  501 ;  R.  v.  Hatfield 
(Inhab.),  4  Ad.  &  Ell.  156;  also  Dig.  P.  ii.  tit.  Connnons  (Inclosure.) 

dEng.  Com.  Law  Reps.  i.t.  324.         'Id.  iv.  405.         'Id.  xii.  303.         fid.  ix.  71. 


248 


crabb's   law   of   real   property. 


390.  At  common  law  there  can  be  no  destruction  of  a  public  way,  a 
"hio-hway  must  always  continue  a  highway  ;(n)  and  if  done  by  Act  of  Par- 
liament the  provisions  of  the  Act  must  be  strictly  complied  with  ;(o)  and  by 
the  same  authority,  ways  to  a  church,  &c.  may  be  stopped  up;  where  there- 
fore a  discretion  was  left  to  the  trustees  of  a  turnpike  road  to  leave  open 
roads  of  that  description,  and  they  thought  fit  to  stop  up  an  old  way,  it  was 
held  that  if  such  discretion  Avere  exercised  by  a  judge  or  jnTy,  instead  of  by 
the  commissioners,  it  would  lead  to  much  litigation  and  uncertainty. (p) 


[*346]     V.  Susjpcusioit  anti  XtcbfUal  of  the  IligUt. 

§  391.  When  Suspension  takes  Place.  ]        §  332.  When  Revival  Ukes  Place. 


§  391.  Ways  may  not  only  be  totally  extinguished,  but  they  may  also 
be  suspended  according  to  the  duration  and  nature  of  the  estate  in  the  land 
and  the  way. ((7) 

Unity  of  possession  merely  suspends  a  prescriptive  easement,  there  must 
be  unity  of  ownership  to  destroy  it  ;(?•)(!)  therefore,  where  a  party  became 
seised  in  fee  of  one  set  of  premises,  and  took  a  lease  of  another  set  of  pre- 
mises, the  owner  of  which  had  previously  enjoyed  an  easement  in  the 
former,  such  unity  of  possession  of  the  land  a  qua  and  in  qua  the  easement 
existed,  was  held  to  operate  only  to  suspend,  not  extinguish  the  right  ;(s) 
but  during  such  suspension  the  way  cannot  pass  under  the  name  of 
"  appurtenance." (/) 

392.  Revival  of  a  right  of  way  does  not  merely  take  place  after  a  tempo- 
rary suspension,  but  it  may  also  take  place  in  cases  of  extinguishment  by 
the  operation  of  a  new  grant.  In  one  case  indeed  this  matter  was  doubted, 
for  where  A.  by  prescription  was  to  keep  a  fence  between  his  close  and 
B.'s,  and  he  afterwards  purchased  B.'s  close,  laid  all  into  one,  and  died, 
and  his  two  daughters  made  a  partition  of  the  two  closes,  it  was  demurred 
in  law  whether  the  prescription  revived  or  not ;(»)  but  in  another  case, 
where  a  partition  took  place  between  two  coheirs,  and  the  land,  on  which 
there  was  a  way,  went  to  one,  and  a  mill  to  the  other,  it  was  agreed  that  one 
should  have  a  passage  over  the  land  of  the  other  according  to  the  ancient 

(n)  Fowler  v.  Sanders,  Cro.  .Tac.  41 G. 

(0)  R.  V.  Ba^shaw,  7  T.  R.  363;  Harbcr  v.  Rand,  9  Priec,  58. 

ip)  Do  Bcauvoir  v.  Welch,  7  B.  >.t  C.  aCO." 

(7)  James  V.  Plant,  4  Ad.  &  Ell.  7G1 ;'  S.  C,  nom.  Plant  v.  James,  2  N.  &,  M.  517. 

(r)  ("anham  v.  Fish,  2  Tvrw.  lof). 

(s)  Tliomas  v.  Thomas,  2  Ci„  M.  &  R.  34  ;  S.  C,  5  Tyrw.  804. 

(/)  James  v.  Plant,  sup.  C")  Anon.,  Dy^  295. 


(1)  Manning  v.  Smith,  6  Conn.  291. 
hEng.  Com.  Law  Reps.  xiv.  42.     Id.  xxxi.  170. 


INTERRUPTION     OF     THE     RIGHT.  249 

right;  and  that  this  convention  between  the  two  sisters,  would  *ope-  ^ 
rate  on  the  part  of  her  who  posessed  the  way  as  a  new  grant  ;(a:)  L  J 
so,  where  two  closes,  one  where  a  right  of  way  existed,  and  the  other  to 
which  it  was  appendant,  became  the  properly  of  an  individual  who  devised 
the  latter  with  the  "appurtenances,"  held,  that  this  word  must  be  confined 
to  an  old-existing  right,  and  had  any  right  passed  by  this  devise,  it  must 
have  passed  as  a  new  easement  ;(</)  so,  where  a  public  footway  over  crown 
land  was  extinguished  by  an  inclosure,  but  the  public  continued  afterwards 
to  use  the  way  for  twenty  years,  such  user  was  deemed  not  to  be  evidence 
of  a  dedication  of  the  way,  unless  it  appeared  to  have  had  the  consent  of  the 
crown  ;(2:)  but  where  a  way  has  been  used  for  thirty  years  after  its  extin- 
guishment, it  has  been  held  sufficient  to  presume  a  new  grant,  (a) 


VI.  Bijsturfjancc  or  Kutfrni4Jtion  of  the  JtltQUt. 

1.  Injuries. 
§  393.  Disturbance  of  a  Right  of  Way.  |    §  394.  Interruption  of  a  Right  of  Way. 

2.  Remedies. 


395.  By  Abatement  of  Nuisance. 
3D  6.   My  Action  on  tlic  Case. 
By  Action  of  Covenant. 


397.  By  Arbitration. 
By  Injunction. 
By  Mandamus. 


1.  Injuries. 

§  393.  Disturbance  of  a  right  of  way  happens  for  the  most  part  when  a 
person  who  has  a  right  of  way  over  another's  ground,  is  obstructed  by 
inclosures  or  other  obstacles,  or  by  ploughing  across  it,  by  which  means 
he  cannot  enjoy  his  right  of  way,  or  at  least  not  in  so  commodious  a  man- 
ner as  he  is  entitled  to  do.(i)(l) 

*394.  Interruption  under  the  prescription  Act,  2  &  3  Wm.  4,  c.  7 1 ,  i-^q^o-i 
means  an  obstruction  by  the  owner  of  the  locus  in  quo,  but  nothing  >-  -' 
will  amount  to  an  interruption  unless  acquiesced  in  for  a  year;(c)  where, 
therefore,  an  easement  has  been  enjoyed  for  nineteen  years  and  a  fraction, 
the  right  may  still  be  acquired  under  this  act,  if  an  action  be  brought  for  an 
interruption  at  the  end  of  the  twenty  years,  for  the  interruption  was  not 
acquiesced  in  for  a  whole  year,  so  as,  under  this  act,  to  defeat  the  twenty 
years'  user  ;(c)  and  where  a  right  of  way  has  once  been  established  by  clear 
evidence  of  enjoyment,  it  can  be  defeated  only  by  distinct  evidence  of  inter- 
ruptions acquiesced  in  ;  an  unsuccessful  attempt  from  time  to  time,  on  the 

(r)  21  E.  3.  2  ;  21  Ass.  pi.  1,  cited  in  Bro.  E;{tinguishment,  pi.  15. 

{y)  Whalley  v.  Thompson,  1  B.  &  P.  371.  («)  Headlam  v.  Hedley,  Holt,  46. 

(a)  Keymer  v.  Summers,  Bull.  N.  P.  74.  (b)  2  Roll.  Abr.  140.  341. 

(c)  Onley  v.  Gardiner,  4  M.  &  W.  497. 

(1)  Query   whether  an   erection   of  gate   be    a  disturbance.    Capers   v    Wilson,   3 
M'Cord,  174. 


250  crabb's  law  of    real  property, 

part  of  the  occupier  of  the  land  over  which  the  way  ran,  to  interrupt  such 
right  will  not  be  sufficient  to  get  rid  of  it.(</) 

2.  Remedies. 

395.  As  a  rule,  a  party  may  not  abate  a  nuisance,  for  as  in  the  case  of  a 
commoner,  he  has  no  interest  in  the  soil  and  must  not  meddle  therewith  ; 
therefore,  where  by  means  of  the  cartwheels  belonging  to  the  owner  of  the 
land,  the  way  was  so  full  of  ruts  that  it  could  not  be  so  well  used  as  before, 
it  was  held,  nevertheless,  that  the  defendant  could  not  justify  digging  a 
trench  :(e)  yet  if  the  way  had  been  utterly  denied  to  him,  as  if,  for  instance, 
he  had  been  shut  out,  the  case  would  have  been  ditFerent,  and  he  would 
have  pleaded  that  he  could  not  use  the  way  at  all ;(/)  on  the  same  principle, 
if  the  way  be  foundrous,  a  man  cannot  justify  going  out  of  the  way  ^[g)  it 
has  however  been  said,  in  regard  to  a  commoner,  that  if  the  injury  be  done 
by  a  stranger,  and  not  by  the  owner  of  the  soil,  the  nuisance  may  be  abated 
by  the  party  having  a  right  of  way.  (A) 

|-^  -,  *396.  The  most  usual  remedy  for  the  disturbance  of  a  way  is  an 
•■  -'  action  on  the  case  ;(«)(!)  whether  it  be  a  way  by  reservation,  grant, 
or  prescription  ;'^)  and  although  the  erection  of  an  obstruction  causes  no 
immediate  injun,-  to  the  plaintiff  in  his  use  of  a  right  of  way,  in  consequence 
of  his  own  laches,  yet  if  its  existence  puts  his  title  in  hazard,  and  prevents 
him  exercising:  his  right  whenever  he  thinks  fit  to  use  it,  he  may  have  his 
action,,'/)  But  if  the  way  be  a  common  way,  and  any  man  be  disturbed  in 
going  that  way,  he  shall  not  have  an  action  upon  his  case ;  and  this  the 
law  has  provided,  for  the  avoiding  a  multiplicity  of  suits,  for  if  any  one  man 
might  have  it,  numbers  might  have  the  hke.(m)  Nuisances  on  the  high- 
ways, being  public  injuries,  are  punishable  by  presentment  and  indictment : 
though  if  special  damage  be  laid,  the  case  is  different,(n)(2j  see  further 
post,  IxjxrRizs  AND  THEIR  REMEDIES,  also  as  to  pleadings. 

397.  An  action  of  covenant  will  lie  by  a  tenant  against  his  lessor  for 
a  breach  of  covenant  for  quiet  enjoyment,  by  obstructing  a  way  of  neces- 
cessity.(o) 

So,  differences  respecting  ways  may,  like  other  matters,  be  referred  to 
arbitration,  but  in  that  the  award  must  shew  a  title  to  the  way.(/)) 

(<?)  Harrie  v.  Rogers,  3  Bli?h,X.  S.  444. 

(«)  Dike  and  Dunstin's  case,  Godb.  52.  (J)  Grt)db.  53,  (£)  See  ante,  §  370. 

(A)  1  Keb.  884. 

(i)  Alston  v.  Pamphin,  Cro,  EL  466 ;  Cantrel  v.  Church,  Id.  845  ;  see  also  3  Lev.  266 ; 
1  Vent.  275.  (k)  1  RoU.  Abr.  104. 

(f)  Bower  v.  Hill,  1  Bin?.  X.  C.  549 ;»  S.  C.  1  Scott,  527  ;  S.  C,  1  Hodges,  45, 

(m)  27  H.  8. 27  ;  1  Inst  56,  a.;  5  Co,  73, 104.         (n)  Greasly  v,  Codlin,  2  Bing,  263," 

(o;  Morris  v,  Edgin^on,  3  Taont.  24.         {p)  2  Harris  T.Comon,  2  Ch.  Ca.  594. 

(1)  Wright  T,  Freeman,  5  Har.  &  John.  475. 

(2)  Roland  v,  Wolie,  1  Bail.  5S,  59,  Peirce  v.  Dart,  7  Cow,  600.  Hughes  v,  Heiser,  1 
Binn.  46S ;  or  he  may  remove  or  abate  the  nuiaance,  doing  as  little  damage  as  possible, 
Beardalee  r.  French,  7  Conn.  128;  Arundel  M'Collock,  10  Mass.  70;  Turnpike  Co,  t, 
Rogers,  2  Barr.  114. 

•Eng,  Com.  Law  Reps,  nriL  439.      'Id.  ii,  407, 


RIGHT     TO     WATER    AND     WATER     COIRSES.  251 

So,  where  a  way  is  in  danorer  of  beins:  destroyed,  to  the  great  injury  of  the 
parlies  entitled  to  the  same,  an  injunction  may  be  obtained  for  the  purpose 
of  stayinof  the  mischief.(y) 

So,  lastly,  a  77}ondamits  may  in  some  cases  be  applied  for  *as  p«q-n-i 
being-  a  more  efficient  remedy,  as  where  a  railway  was  made,  by  L  -* 
authority  of  Parliament,  and  it  was  declared  that  the  public  should  use  it, 
but  the  company  took  it  up.(?-) 


SECTIC'X  VIII. 

RIGHT    TO    WATER    AND    WaTER-COVRSES. 

§  398.  A  right  to  the  use  of  water  is  either  public  or  private.  The  right? 
connected  with  public  waters  have  already  been  treated  of  (see  ante,  §  104 
ct  seq.,  and  as  far  as  it  is  connected  with  fisheries  see  ante,  §  108.^  The 
private  right  to  running  water,  so  far  as  this  is  capable  of  being  reduced  to 
possession,  as  an  incorporeal  hereditament,  which  may  be  considered — 

1.  As  to  the  nature  and  extent  of  the  right. 

y.  How  claimed. 

3.  How  used. 

4.  Extinguishment  of  the  right. 

5.  Disturbance  of  the  right  and  the  remedies. 


I.  ^Inturr  antr  Srtnu  of  Wxt  iifcjlit. 


§399.  Water  publici  juris. 

Under  what  Restriction  this  is  to  be 
taken. 

400.  Right  of  Occapancy. 

401.  Cases  in  suppwrt  of  the  principle  : — 
Bealer  v.  Shaw. 

403.  Saunders  v.  Newman. 

403.  Wright  v.  Howard. 

404.  Result  of  Uie  cases. 


§  405.  Running  Water  the  subject  of  dif^ 
ferent  Easements, 
Receiving  a  Flow  of  Water. 

406.  Right  to  discharge  Water. 

407.  Artificial  Water-courses. 

408.  Subterraneous  Channels. 

409.  Private  Rights  in  Navigable  Rivers. 

410.  Watering  "Cattle. 
Lan  ding-Nets. 


f  399.  Water,  it  is  said,  flowing  in  a  stream,  is  well  settled  by  the  law  of 
England  to  be  publici  Juris,  and  the  person  *\vho  fii^t  appropriates  _3j„_.-| 
any  part  of  this  water  through  liis  land  to  his  own  use  has  the  right  ^ 
to  the  use  of  so  much  as  he  then  appropriates  against  any  other  ;(s)  so,  in 
Williams  v.  Morland(f)  it  had  been  previously  said,  "  Flowing  water  is 
cfrlginaWy  publici  juris. ^''     So  soon  as  it  is  appropriated  by  an  individual, 

(7'  Newmarsh  v.  Brandling,  3  Swanst  99. 

(r'   R.  v.  Severn,  vkc.  Railwav  Companr,  2  B.  <fc  A.  646. 

(s;  Liggins  v.  Inge,  7  Bing.'692.--     [i'i  B.  i  C.  310.^ 

'Eng.  Com.  Law  Reps.  ix.  2S7.     ^d.  ix.  269. 


252  crabb's   law   of    real   property. 

his  rififht  is  co-extensive  with  the  beneficial  use  to  which  he  appropriates  it  ; 
subject  to  that  right  all  the  rest  of  the  water  remains  publici  juris.  The 
party  who  obtains  an  exclusive  enjoyment  of  the  water  does  so  in  deroga- 
tion of  the  primitive  right  of  the  public  ;(a:)  and  so  Mr.  Justice  Blackstone 
saj^s,  "  Water  is  a  movable  wandering  thing,  and  must  of  necessity  continue 
common  by  the  law  of  nature,  so'that  I  can  only  have  a  temporary,  transient, 
usufructuary  propert)'^  therein ;  so  that,  if  a  body  of  water  runs  out-of  my 
pond  into  another  man's,  I  have  no  right  to  reclaim  it  ;(3/)"  but  by  this  it  is 
not  to  be  understood  that  the  first  occupier,  or  first  person  who  chooses  to 
appropriate  a  natural  stream  to  a  useful  purpose,  has  a  title  against  the 
owner  of  land  below,  and  may  deprive  him  of  the  benefit  of  the  natural  flow 
of  water ;  and  consequently  it  has  been  held,  that  the  first  occupant,  though 
he  may  be  the  proprietor  of  the  land  above,  has  no  right  by  diverting  the 
stream  to  deprive  the  owner  of  the  land  below  of  the  special  benefit  and 
advantage  of  the  natural  flow  of  water  therein  ;(z)(l)  and  it  is  said  "The 
object  of  the  judgment  in  Mason  v.  Hill(«)  was  to  set  right  the  mistaken 
notion  which  had  got  abroad  in  consequence  of  certain  dicta  in  Williams  v. 
Morland,(6)  that  flowing  water  is  publici  juris,  and  that  the  first  occupant 
of  it  for  a  beneficial  purpose  may  appropriate  it. "(c) 

r*Qroi  '^^^-  "The  position  that  the  first  occupant  of  running  *water  for 
L  -'a  beneficial  purpose  has  a  good  title  to  it,  is  perfectly  true  in  this 
sense,  that  neither  the  owner  of  the  land  below  can  pen  back  the  water,  nor 
the  owner  of  the  land  above  divert  it  to  his  prejudice.  In  this  as  in  other 
cases  of  injuries  to  real  property,  possession  is  a  good  title  against  a  wrong- 
doer ;  and  the  owner  of  the  land  who  applies  the  stream  that  runs  through 
it,  to  the  use  of  a  mill  newly  erected,  or  other  purposes,  if  the  stream  is 
diverted  or  obstructed,  may  recover  for  the  consequential  injury  to  the 
mill."((/) 

"  But  it  is  a  very  different  question  whether  he  can  take  away  from  the 
owner  of  the  land  below  one  of  its  natural  advantages,  which  is  capable  of 
being  applied  to  profitable  purposes,  and  generally  increases  the  fertility  of 
the  soil,  even  when  unapplied,  and  deprive  him  of  it  altogether,  by  antici- 
pating him  in  its  application  to  a  useful  purpose. (2)  If  this  be  so,  a  consi- 
derable part  of  the  value  of  an  estate,  which,  in  manufacturing  districts  par- 
ticularly, is  much  enhanced  by  the  existence  of  an  unappropriated  stream 
of  water  with  a  fall  within  its  limits,  might  at  any  time  be  taken  away;  and, 
by  parity  of  reasoning,  a  valuable  mineral  or  brine  spring  might  be  abstracted 
from  the  proprietor  in  whose  land  it  arises,  and  converted  to  the  profit  of 
another."  (rf)  (3) 

{x)  Per  Bayley,  J.,  Id.  913.         (y)  2  Comm.  8.         (z)  Mason  v.  Hill,  5  B.  &  Ad.  24,e 
(a)  Sup.  (/>)  2B.&.C.910.f 

(c)  Per  Parke,  B.,  in  Arkwright  v.  Gill,  5  M.  &  W.  220. 

(d)  Per  Denman,  C.  J.,  in  Mason  v.  Hill,  5  B.  Sc  Ad.  24;-  citing  Rutland  (Earl)  v. 
Bowler,  Palm.  290,  where  this  same  position  is  laid  down. 

(1)  Merrit  V.  Parker,  1  Coxe,  465.     Beisoll  v.  Sholl,  4  Dall.  211. 

(2)  This  right  cannot  be  tiken  away  even  under  the  authority  of  the  legislature  and 
consent  of  the  owner  of  the  land  above  the  person  injured.  Gardner  v.  Newburg,  2  J.  C. 
R.  162.     Cooper  v.  Williams,  4  Hamm.  286. 

(3)  Merrit  v.  BrinkerhofF,  17  Johns.  320 ;  and  the  application  of  the  water  to  any  pur- 

«Eng.  Com.  Law  Reps,  xxvii.  11.        ^Id.  ix.  269. 


RIGHT    TO    WATER    AND    WATER-COURSES.  253 

401.  In  accordance  with  the  principles  as  above  laid  down,  it  had  been 
held  in  Bealey  v.  Sha\v(p)  that  the  owner  of  land  through  which  a  river 
runs  cannot,  by  enlarging  a  channel  of  certain  dimensions  through  which 
the  water  had  been  used  to  flow  before  any  appropriation  of  it  by  another, 
divert  more  of  it,  to  the  prejudice  of  any  other  landowner  lower  down  the 
river,  who  had  before  such  enlargement  appropriated  to  himself  the  surplus 
water  which  did  not  escape  by  the  former  channel;  for  "the  general 
*rule  of  law  as  applied  to  this  subject  is,  that,  independent  of  any  ^ 
particular  enjoyment, used  to  be  had  by  another,  every  man  has  the  <-  -^ 
right  to  have  the  advantage  of  a  flow  of  water  in  his  own  land  without  dimi- 
nution or  alteration.  But  an  adverse  right  may  exist  founded  on  the  occu- 
pation of  another.(l)  And  though  the  stream  be  either  diminished  in 
quantitjr,  or  even  corrupted  in  quality,  as  by  means  of  the  exercise  of  certain 
trades,  yet  if  the  occupation  of  the  party  so  taking  or  using  it  have  existed 
for  so  long  a  time  as  may  raise  a  presumption  of  a  grant,  the  other  partv 
whose  land  is  below  must  take  the  stream,  subject  to  such  adverse 
right."(/)(2) 

402  In  Saunders  v.  Newman, (g-)  it  was  held  that  the  occupier  of  a  mill 
may  maintain  an  action  for  forcing  back  water  and  injuring  his  mill,  although 
he  had  not  enjoyed  it  precisely  in  the  same  state  for  twenty  years  ;  and, 
therefore,  it  was  no  defence  to  such  an  action,  that  the  occupier  had  within 
a  few  years  erected  in  his  mill  a  wheel  of  different  dimensions,  but  requirinar 
less  water  than  the  old  one.  "  When  a  mill  has  been  erected  upon  a  stream 
for  a  long  period  of  time,  it  gives  to  the  owner  a  right  that  the  water  shall 
continue  to  flow  to  and  from  the  mill,  in  the  manner  in  which  it  has  been 
accustomed  to  flow  during  all  that  time. "(A:)  "  If  a  person  stops  the  current 
of  a  stream  which  has  immemorially  flowed  in  a  given  direction,  and 
thereby  prejudices  another,  he  subjects  himself  to  an  action  ;"(/)  as  to  the 
period  of  enjoyment  necessary  to  give  this  right,  see  infra,  §  415  ;  and  as 
to  the  manner  of  enjoyment  necessary  for  maintaining  the  right,  see  infra, 
§  418  et  seq. 

403.  In  Wright  v.  Howard, (/c)  it  is  laid  down  :  "The  right  to  the  use  of 
water  rests  upon  clear  and  settled  principles  ;  pritnd  facie,  the  proprietor  of 
each  bank  of  a  stream  is  *proprietor  of  half  the  land  covered  by  the 
stream,  but  there  is  no  property  in  the  water.  Every  proprietor  L  ^^"^J 
has  an  equal  right  to  use  the  water  which  flows  in  the  stream,  and  conse- 
quently no  proprietor  can  have  a  right  to  use  the  water  to  the  prejudice  of 
any  other  proprietor.  (3)     Without  the  consent  of  the  other  proprietors  who 

(e)  6  East,  208. 

(/)  Per  Ellenborough,  C.  J.,  in  Bealey  v.  Shaw,  sup.  (^)  1  B.  &  A.  258. 

(A)  Per  Abbot,  J.,  lb.  (i)  Per  Bayley,  J.,  lb.  (k)  1  S.  &  St.  190. 


pose  does  not  confine  or  narrow  tlie  right  to  the  natural  flow,  but  the  party  may  recover 
for  an  infringement  of  his  right,  even  though  no  injury  arises  to  his  present  modeof  apuli- 
cation.     King  v.  Tiffany,  9  Conn.  162.  ^^ 

(1)  Post.  360,  as  to  adverse  possession. 

(2)  Howell  V.  xll'Coy,  3  Raw.  256. 

(3)  Arthur  v.  Case,  1  Paige,  447  ;  Vandenburg  v.  Van  Bergen,  13  Johns.  216—17. 
November,  1846. — 17 


254  crabb's  law   of   real  property. 

may  be  affected  by  his  operations,  no  proprietor  can  eitiier  diminish  the 
quantity  of  water  which  would  otherwise  descend  to  the  proprietors  below, 
or  throw  the  water  back  upon  the  proprietors  above.  Every  proprietor  who 
claims  to  throw  the  water  back  above,  or  diminish  the  quantity  of  Avater 
which  is  to  descend  below,  must,  in  order  to  maintain  his  claim,  either  prove 
an  actual  grant  or  license  from  the  proprietors  affected  by  his  operations,  or 
must  prove  an  uninterrupted  enjoyment  of  twenty  years. (A 

404.  The  opinions  expressed  in  Williams  v.  Morland,(7n)  and  Liggins  v. 
Inge,(n)  respecting  the  common  right  to  water,  were  supposed  at  one  Imie 
to  be  at  variance  with  the  doctrine  laid  down  in  the  preceding  cases  ;  but  it 
is  said  that  "the  object  of  the  judgment  in  IVIason  v.  Hi]l,(o)  was  to  set  right 
the  mistaken  notions  which  had  got  abroad  in  consequence  of  certain  dicta 
in  Williams  v.  Morland,(jo)  that  flowing  water  \s  publici  juris,  and  that  the 
first  occupant  of  it  for  a  beneficial  purpose  may  appropriate  it,"(9)  it  being 
by  that  case  established  that  the  position  in  the  two  former  cases  is  correct, 
with  this  qualification  only,  that  by  such  appropriation  no  greater  right  is 
claimed  than  to  a  flow  of  water  in  its  usual  and  accustomed  course,  and  it  is 
settled  that  no  appropriation  except  for  such  a  period  as  will  confer  an  ease- 
ment, can  diminish  the  natural  rights  of  other  parties. 

pj^„__-,  405.  Running  water  is  the  subject  of  easements  of  *different 
L  -^  kinds  :  as  a  right  to  receive  a  flow  of  water  in  its  accustomed  coarse, 
a  right  to  interfere  with  that  course,  a  right  to  discharge  water  either  in  its 
natural  state  or  changed  in  quantity  or  quality,  a  right  to  water  cattle  at  a 
stream  or  pond  filled  by  a  stream. 

The  easement  of  receiving  water  in  its  accustomed  course,  is  that  sort  of 
easement  commonly  claimed  under  the  name  of  a  water-course,  which  has 
caused  so  much  discussion. (r)(l) 

406.  A  right  to  discharge  water  on  another's  land  has  been  recognised  in 
several  cases. (2)  Thus,  a  right  may  be  acquired  to  throw  back  upon  the 
land  of  proprietors  higher  up  the  stream  the  water  which,  unless  so  forced 
back,  would  naturally  pass  from  it  ;(s)  so,  a  right  to  let  off  upon  the  neigh- 
bouring land,  water  which  had  been  used  for  the  precipitation  of  minerals, 
and  was  thereb}'-  rendered  noxious  ;(/)(3)  so,  although  every  man  is  bound 
to  construct  his  house  so  that  it  should  not  overhang  his  neighbour's  pro- 

(/)  Per  Sir  J.  Leach,  V.  C,  lb.  (m)  2  B.  &  C.  910  ;'•  S.  C,  4  D.  &  R.  583. 

(n)  7  Bin<^.  682  ;    5  M.  &  P.  713.         (o)  5  B.  &.  Ad.  24.^         (p)  2  B.  &  C.  910." 

(V)  Per  Parke,  B.,  in  Arkwright  v.  Gcll,  5  M.  &  W.  220. 

(»•)  See  ante,  ^§  31)9,  404  ;  also  Fr:inkum  v.  Falmouth,  (Earl)  fi  C.  &  P.  529.« 

(s)  Saunders  v.  Newman,  1  B.  &  A.  258.       (t)  Wright  v.  Williams,  1  M.  &,  W.  77. 

(1)  Tyler  v.  Wilkinson,  4  Mason,  403. 

This  rig^ht  is  not  diminished  by  user  in  a  particular  manner;  and  an  action  will  lie 
though  all  tiiat  is  necessary  for  such  user  remains.  King  v.  Tiffany,  9  Conn.  162.  Bud- 
dington  v.  Bradley,  10  Conn.  213. 

(2)  Increasing  a  natural  discharge  is  an  injury.  Merrit  v.  Parker,  Coxe,  465.  So  if 
the  water  be  detained  for  a  time  and  then  let  down  in  unusual  quantities.  Rlcrrit  v. 
Brinkcrhoff,  17  Johns.  306.     Shaw  v.  Cumminskey,  7  Pick.  77. 

(3)  Howell  V.  M'Coy,  3  Raw.  269. 

tEng.  Com.  Law  Reps.  ix.  269.        'Id.  xx.  287.        Jld.  xxvii.  11.        ^Id.  xxv.  526. 


RIGHT    TO     WATER     AND    WATER- COURSES.  255 

petty,  and  to  construct  his  roof  so  as  not  to  throw  the  rain-water  upon  the 
neighbouring  land  ;(u)  yet,  a  right  may  be  acquired  by  user,  to  project  the 
wall  or  eaves  over  the  boundary  line  of  his  property,  and  so  to  discharge 
the  rain  on  his  neighbour's  land  ;(a:)  so,  likewise,  to  discharge  water  in  the 
neighbouring  land  by  means  of  a  gutter  or  pipe  ;{y){l)  but,  a  party  receiv- 
ing water  drained  from  a  mine,  cannot  compel  the  owners  of  the  mine  to 
continue  such  discharge  ;  therefore,  where  certain  parties  constructed  a 
sough  or  level,  for  the  purpose  of  draining  their  mineral  field,  and  the 
water  from  this  sough  flowed  into  a  brook,  the  united  waters  of  which 
turned  an  ancient  corn-mill,  after  which  A.  obtained  a  lease  of  the  brook, 
of  the  stream  of  water  issuing  from  the  sough  into  it,  and  of  *the  p*o,-«-i 
piece  of  land  on  which  the  corn-mill  stood,  with  the  right  of  erect-  L  J 
ing  mills  thereon,  which  lease  contained  a  proviso,  that  if,  during  the  term, 
the  stream  issuing  from  the  sough,  should,  by  the  bringing  up  of  any  other 
sough,  or  by  unavoidable  accident,  be  taken  away  or  lessened,  so  that  there 
should  not  come  to  the  mills  sufficient  to  work  them,  and  the  lessor  should 
not  be  able  to  supply  it,  it  should  be  lawful  for  A.  to  take  down  the  mills 
and  remove  them  to  another  piece  of  ground  therein  described,  of  which  a 
lease  should  be  granted  for  the  rest  of  the  term.  The  sough  having  after- 
wards been  drained  by  means  of  another  sough,  so  that  water  supplying 
A.'s  mills  was  thereby  diverted,  it  was  held,  that,  under  the  circumstances, 
A.  had  not  acquired  by  user  of  the  water  issuing  from  the  sough,  such  a 
rio-ht  to  it  as  to  entitle  him  to  maintain  an  action  against  the  owners  of  the 
second  sough,  this  being  an  artificial  water-course,  made  for  a  temporary 
and  particular  purpose,  and  its  water  having  been  taken  by  him,  with  notice 
that  it  might  be  discontinued,  and  there  being  nothing  on  which  to  found 
the  presumption  of  a  grant  by  the  owner  of  the  mines,  he  did  not  acquire 
such  right  by  force  of  the  2  &  3  W.  4,  c.  71.(2')  A  user  for  twenty  years, 
or  more,  would  afford  no  presumption  of  a  grant  of  the  right  to  the  water 
in  perpetuity,  for  such  a  grant  would  be  neither  more  nor  less  than  an  obli- 
gation on  the  mine  owner  not  to  work  his  mines  by  the  ordinary  mode  of 
getting  minerals,  below  the  bed  drained  by  that  sough,  and  to  keep  the  mines 
flooded  for  the  benefit  of  others. (s) 

407.  In  the  absence  of  any  special  custom,  artificial  water  courses  are 
regulated  by  the  same  rules  as  natural  ones,(2)  and  a  title  may  be  gained  by 
user  in  the  one  case  as  in  the  other;  therefore,  where  mine  owners  made  an 
adit  through  their  lands,  to  drain  which  they  afterwards  discontinued  to 
work,  and  the  owner  of  a  brewery,  through  whose  premises  *the  p^oK^T 
water  flowed  for  twenty  years  after  the  working  had  ceased,  had,  L 
during  that  time,  used  it  for  brewing,  it  was  held,  that  he  thereby  gained 

(u)  11  H.  7.  f.  2.57.  (ar)  Thomas  v.  Thomas,  2  Cr.,  M.  &  R.  34. 

ly)  Baton's  case,  9  Co.  50  ;  Ladv  Browne's  case,  cited  in  Shury  v.  Pigott,  Palm.  446, 

(?)  Arkwright  v.  Gell,  o  M.  fc  W.  220. 

(1)  But  such  right  is  not  acquired  by  necessity  (as  from  the  natural  formation  of  the 
ground)  in  case  of  a  conveyance  (partition  between  tenants  in  common)  of  city  lots, 
Bentz  V.  Armstrong,  8  W.  &.  S.  40. 

(2)  In  Manning  v.  Smith,  9  Conn.  289,  the  fact  that  the  water  course  on  vendor's  land 
was  an  artificial  one,  was  relied  on  to  avoid  an  implication  of  the  grant  of  an  easement  to 
the  vendee  of  the  land  to  which  the  water  flowed. 


256  crabb's  law  of  real  property. 

the  undisturbed  enjoyment  of  the  water,  and  that  mines  could  not  after- 
Avards  be  worked  to  pollute  it.(a)(l)  It  seems  to  be  questionable  whether 
a  universal  practice  in  the  neighbourhood,  to  resume  the  use  of  such  adit 
waters  for  mining  purposes,  after  a  long  interval,  might  not  have  been  set 
up  in  answer  to  the  claim  of  easement,  thereby  raising  the  inference,  that 
the  party  claiming  used  the  water  not  of  right,  but  only  during  the  acci- 
dental disuse  of  the  adit,  and  with  knowledge  that  the  mine  owners  reserved 
to  themselves  a  power  to  recommence  working,  and  thereby  disturbing  the 
water;(a)  so,  the  proposition  that  a  watercourse,  of  whatever  antiquity,  and 
in  whatever  degree  enjoyed  by  numerous  persons,  cannot  be  so  enjoyed  a.- 
to  confer  a  right  to  the  use  of  the  water,  if  proved  to  have  been  originally 
artificial,  was  held  to  be  quite  indefensible. (a) 

408.  By  the  term  water-course  is  usually  understood  a  stream  of  water 
flowing  above  ground,  but  similar  questions  may  arise  respecting  the  right 
to  a  flow  of  water  underground.  In  Cooper  v.  Barber, (6)  where  a  party 
had  for  several  years  pushed  back  a  stream  for  the  purpose  of  irrigation,  in 
consequence  of  which  the  water  penetrated  through  the  neighbouring  soil, 
it  was  held,  that  no  right  to  cause  such  percolation  was  acquired  by  the 
user,  and  the  adjoining  owner,  on  sustaining  any  injury  from  it  to  his  newly 
erected  house,  might  bring  an  action  ;  but  in  Balston  v.  Bensted,(c)  it  was 
held  that  after  twenty  years'  uninterrupted  enjoyment  of  a  spring,  an 
absolute  right  to  it  is  gained  by  the  occupier  of  the  close  in  which  it  issues 
above  ground,  and  the  owner  of  the  adjoining  close  is  not  justified  in  cutting 
a  drain,  whereby  the  supply  of  water  to  the  spring  is  diminished. (2) 

^  *409.  In  the  case  of  a  navigable  river,  the  presumption  is  thar 

C  -1  the  soil  is  vested  in  the  crown,  yet  a  subject  may  claim  a  prescrip- 
tive right  to  a  several  fishery  in  an  arm  of  the  sea,  even  against  the 
crown  -,{(1)  and  may,  by  grant(3)  or  prescription,  have  the  interest  in  the 
water  and  soil  of  navigable  rivers,  as  the  city  of  London  has  the  soil  and 
property  of  the  Thames  by  grant  ;(e)  so,  special  rights  in  the  water  have 
been  acquired  by  way  of  easement  to  properties ;(/)  but  a  man  cannot  pre- 
scribe to  have  a  necessary  casement  in  the  land  of  another,  for  himself  and 
his  servants  to  catch  fish  in  his  several  fishery,(^)  for  it  is  there  said  that 
though  the  word  easement  is  known  in  law,  yet  in  this  case  the  thing  itself 
is  set  forth,  that  is,  to  catch  fish,  &c.,  and  certainly  no  instance  can  be  given 
for  such  a  liberty  by  such  a  word  or  name,(o-)  see  further  as  to  fishery,  ante. 
§  104  et  seq. ;  also  common  of  piscary,  ante,  §  304. 

410.  A  right  in  the  occupier  of  an  ancient  messuage  to  water  his  cattle 

(a)  Magor  v.  Chadwick,  11  Ad.  &  E.  571  ;>-  S.  C,  3  P.  &  D.  367. 

(6)  3  Taunt.  99.  (c)  1  Campb.  463. 

Id)  Oxford  (Mayor,  &c.)  v.  Richardson,  4  T.  R.  439.  (e)  Dav.  56. 

(/)  12  East,  429.  (g)  Peers  v.  Lucy,  4  Mod.  362. 


(1)  Belknap  v.  Trimble,  3  Paige,  377. 

(2)  Smith  V.  Adams,  6  Paige,  442. 

(3)  But  a  license  so  to  use  a  navigable  stream  is  subject  to  the  right  of  the  legislature 
to  make  subsequent  grants  without  compensation.    Monongahela  v.  Koons,  6  W.  &  S.  11^. 


•^Eng.  Com.  Law  Reps,  xxxix.  169. 


RIGHT    TO    WATER    AND    AVATKR-COURSES.  257 

at  a  pond,  and  to  take  the  water  thereof  for  domestic  purposes,  is  a  mere 
casement,  and  not  a  profit  a  prendre  in  the  soil  of  another.  Such  a  right 
may  be  claimed  by  reason  of  the  occupation  of  an  ancient  messuage,  with- 
out any  limitation  as  to  the  quantity  of  water  to  be  taken  ;(/i)  so,  there  may 
be  a  right  to  land  and  mend  nets  on  another  man's  ground  ;(i)  and  the 
acquiescence  of  the  owner  may  be  presumed  from  circumstances/A 


*II.  ^0^  CiclfmCtJ.  [*359] 


§411.  How  it  may  be  prescribed  for. 
How-claimed  by  custom. 

412.  Must  be  by  Deed. 

413.  Grant  implied  or  presumed. 

414.  Effect  of  Acquiescence. 


415.  Upon  what  length  of  enjoyment  the 

Presumption  is  raised. 

416.  What  passes  under  a  Grant, 

What  necessary  to  the  validity  of  a 
Grant. 


417.  Effect  of  appropriation. 


1.  By  Prescription  or  Custoyn. 

.  §  411.  A  right  to  water  may  be  claimed  by  prescription  or  custom,  by 
grant,  and  by  appropriation. 

An  easement  in  respect  of  water  may  be  claimed,  if  not  by  direct  pre- 
scription, at  least  by  custom.  It  is  said,  "A  water-course  doth  not  begin 
by  prescription,  nor  yet  by  assent,  but  the  same  doth  begin  ex  jure  naturae^ 
having  taken  this  course  naturally,  and  cannot  be  averted  ;"(A')  yet  it  may 
be  claimed  by  prescription,  but  if  a  man  prescribe  generally  for  a  water- 
course, and  it  turns  out  in  evidence  that  the  water  has  not  always  run  to 
the  plaintiff's  house,  it  has  been  held  that  he  had  failed  of  his  prescrip- 
tion ;(A;)  so,  it  may  be  alleged  as  a  custom  to  have  a  water-course  or  a  wash- 
ing-place in  another  man's  ground  ;(/)  and  although  a  multitude  cannot  pre- 
scribe, yet  for  an  easement  they  may  plead  custom  ;(?n)  but  the  stanners  of 
Devonshire  are  not  entitled  by  custom  to  divert  water  from  streams  running 
into  their  mines,  and  for  that  purpose  to  dig  trenches  over  other  people's 
lands,  (nj 

2.  By  Grant.  [  *360  ] 

412.  A  grant  either  express  or  implied  is  for  the  most  part  the  founda- 
tion of  the  right  to  water,  but  it  requires  a  deed  to  create  a  right  and 
title  to  have  a  passage  for  water ;  therefore,  Avhere  one  declared  in  case  for 
obstructing  a  water-course  upon  his  possession  of  a  mill  with  the  appur- 
tenances, and  that  by  reason  of  such  his  possession  he  had  a  right  to  the  use 

(A)  Manning:  v.  Wasdale,  5  Ad.  &  Ell.  764  ;=  S.  C,  1  N.  &  P.  173. 

(i)  Pain  V.  Patrick,  3  Mod.  294. 

( j)  Gray  v.  Bond,  2  B.  &,  B.  667  ;'J  S.  C,  5  J.  B.  Moore,  527. 

{k)  Per  ^yhitlock,  J.,  Murgatroid  v.  Law,  Carth.  117.  {I)  3  Mod.  294. 

(m)  lb.  see  also  Goodday  v.  Mitchell,  Cro.  El,  441. 

(n)  Bastard  v.  Smith,  2  xMoo.  &  Rob.  129, 

i^Eng.  Com.  Law  Reps.  xsxi.  433.    ''Id.  vi.  308. 


258  crabb's  law  of  real  property. 

of  water  running  in  a  certain  tunnel,  such  allegation  is  not  supported  by 
proof  that  the  tunnel  was  made  on  the  defendant's  land,  which  he  had 
•Bgreed  by  parol  to  let  the  plaintiff' have  for  a  certain  consideration,  because 
the  plaintiff  had  not  the  water  by  reason  of  his  possession  of  the  mill,  but 
by  parol  license,  or  contract. (o)(l) 

A  right  of  way,  or  a  right  of  passage  for  water,  (where  it  does  not  create 
an  interest  in  land,)  is  an  incorporeal  right,  and  stands  upon  the  same  foot- 
ing with  other  incorporeal  rights,  such  as  rights  of  common,  rents,  advowsons, 
&c.,  it  lies  not  in  livery  but  in  grant,  and  a  freehold  interest  cannot  be  created 
or  passed  otherwise  than  by  deed  ;(p)  so,  where  a  subject  is  owner  of  a 
several  fishery  in  a  navigable  river,  where  the  tide  flows  and  reflows,  granted 
to  him  (as  must  he  presumed,)  before  Manga  Charta  by  the  description  of 
separalem plscariam,  it  being  an  incorporeal  hereditament,  a  term  for  years 
cannot  be  created  in  it  without  deed.(5') 

413.  A  grant  may  be  implied  from  long  user;(2)  therefore,  where  a  bill 
was  brought  to  quiet  the  plaintiff  in  the  enjoyment  of  a  water-course  to  his 

(o)  Fentiman  v.  Smith,  4  East,  107.  (p)  Hewlins  v.  Skeppam,  5  B.  &  C.  221. » 

Iq)  Somerset  (Duke)  v.  Fogwell,  5  B.  &  C.  875." 


(1)  But  the  riglit  to  convey  water  through  the  land  of  another  is  tangible,  and  eject- 
ment  would  lie;  and  when  the  agreement  though  parol,, is  executed,  it  is  not  within 
the  statute  of  frauds.     Le  Fcvre  v.  Le  Fcvrc,  4  S.  &  R.  241. 

(2)  With  regard  to  tlie  right  conferred  by  a  user  which  is  adverse  to  another,  and  for 
which  an  action  would  at  any  time  lie,  there  appears  to  be  no  difference  of  opinion ;  and 
the  statute  of  limitations  applicable  to  titles  to  land  furnishes  an  analogous  rule  for  pre- 
suming a  grant  of  the  right  thus  used.  But  the  right  of  a  party  resulting  from  a  lawful 
user,  not  adverse  in  its  character,  and  for  which  no  action  would  lie  by  any  one,  is  the 
subject  of  conflicting  decisions ;  all,  however,  professing  to  be  based  upon  the  same  rule 
of  law,  to  wit,  the  presumption  of  a  grant.  The  facts  of  tlie  cases  are  nearly  identical. 
The  owner  of  land,  through  which  a  stream  ran,  erected  a  dam  and  used  the  power  thus 
acquired  for  more  than  the  period  required  to  perfect  a  title  by  adverse  possession,  in  no 
way,  however,  trespassing  on  the  right  of  another.  The  owner  of  the  land  lying  above 
on  the  same  stream,  erected  a  dam  on  his  land  ;  and  the  question  was  simply  whether  the 
erection  and  use  of  the  first  dam  gave  a  right  by  prescription  to  the  owner  below  as  against 
all  other  owners  of  the  land,  over  which  the  stream  ran.  In  Ingraham  v.  Hutchinson,  2 
Conn.  584,  it  was  held  that  it  did ;  though  the  argument  was  strongly  urged  that  tliere 
had  been  no  user  adverse  to  the  supra-riparian  right,  nor  any  user  of  any  thing  tliat  was 
his,  or  that  he  was  competent  to  prevent.  But  the  Court  considered  there  was  a  prescrip- 
tive right  to  the  flow  of  the  water,  as  it  had  continued  for  twenty  years.  Gould,  J.,  dis- 
sented on  the  ground  urged  at  the  bar ;  and  two  of  the  judges  concurred,  solely  on  the 
authority  of  Sherwood  v.  Burr,  4  Day,  244.  That  case,  however,  was  a  clear  one  of 
adverse  possession,  by  throwing  the  water  on  plaintift''s  land  or  mill-wheel,  by  means  of 
a  dam,  which  had  been  done  for  tlie  analogous  statutory  period. 

In  Colburn  v.  Richards,  13  Mass.  420,  the  same  principle  is  recognised  as  that  in 
4  Conn. ;  but  there  was  a  diversion  of  the  stream  by  an  artificial  erection,  which  gave  a 
right  of  action,  independent  of  the  user  for  mill  purposes.  Cook  v.  Hale,  3  Pick.  269,  is  to 
the  same  effect.  The  remarks  of  Mr.  Justice  Story,  in  4  Mason,  397,  if  they  countenance 
this  view,  arc  entirely  contrary  to  the  general  principle  laid  down  by  him  in  7  Wheat., 
hereafter  noticed ;  and  the  case  itself  is  apparently  one  of  adverse  user. 

On  the  other  hand  it  has  been  ruled  in  Hoy  v.  Sterret,  2  Watts,  327, — and  the  positions 
of  Mr.  Justice  Rogers  appeared  to  contain  all  the  argument  on  the  subject, — that  no  lapse 
of  time,  merely,  gives  any  right  as  against  another  riparian  proprietor,  for,  1.  Mere  occu- 
pation gives  no  right  as  against  a  person  wlio  at  tliat  time  had  title ;  all  the  American 
cases  agree  with  this.  2.  Unless  such  occupation  be  continued  so  long  as  to  aflTord  a  pre- 
sumption of  a  grant.  3.  Which  can  only  arise  where  there  has  been  an  adverse  user. 
4.  This  can  only  be  where  the  user  would  have  subjected  the  party  to  an  action  by  him 
against  whom  a  right  is  to  be  thus  acquired. 

"Eng.  Com.  Law  Reps.  xi.  207.    ^Id.  xii.  395. 


,  RIGHT    TO    WATER    AND    WATER- COURSES.  259 

house  and  garden  through  the  ground  of  the  defendant,  and  it  appeared  that  the 
water-course  had  been  enjoyed  for  a  great  length  of  time,  it  was  held,  that  it 
should  be  presumed  that  the  owner  of  'the  house  had  a  right  to  the  water- 
course, unless  the  other  party  *could  shew  a  special  license,  or  an  ps:.3g|-| 
agreement  to  restrain  it  in  point  of  time  ;(r)  so,  where  a  plaintiff  had  L 
been  in  possession  of  a  water-course  for  upwards  of  sixty  years,  and  the  defend- 
ant claimed  the  land  through  which  the  water-course  ran  by  virtue  of  a  for- 
feited mortgage,  the  plaintifl^'s  title  being  proved,  and  also  the  fact  that  the 
defendant  had  cut  a  channel  through  his  own  lands,  and  set  up  a  sluice, 
whereby  the  water-course  had  been  diverted,  the  Court  in  this  case  decreed 
for  the  plaintiff  without  sending  him  to  try  his  right  at  law.(s) 

414.  So,  the  knowledge  of  the  owner  of  the  land  and  his  acquiescence 
may  be  presumed  from  circumstances  ;  thus,  when  the  lessees  of  a  fishery 
had  pablicly  landed  their  nets  on  the  shore  at  A.  for  more  than  twenty 
years,  and  had  at  various  times  dressed  and  improved  the  landing-place,  and 
both  the  fishery  and  the  landing-place  at  one  time  belonged  to  the  same 
person,  but  no  evidence  was  offered  to  shew  that  he,  or  those  who  under 
him  owned  the  shore  at  A.,  knew  of  the  landing  of  the  nets  by  the  lessee, 
it  was  held,  that  it  was  properly  left  to  the  jury  to  presume  a  grant  of  the 

(»•)  Finch  V.  Resbridger,  2  Vern.  390. 

(s)  Id.  3!)1,  n.  1 ;  see  also  Bush  v.  Western,  Free.  Ch.  530. 


I 


Other  cases  support  this  view  of  the  rule  :— thus,  in  Hurlbut  v.  Leonard,  Brayt.  201 ,  it  is 
said  the  prescription  does  not  commence  from  the  erection  of  the  dam,  but  from  the  flood- 
ing of  the  land  of  tlie  other  party  by  means  of  the  dam.     Hathorn  v.  Stinson,  3  Fairf  183, 
followed  Hoy  v.  Sterret,  and  assumes  the  same    position,   without  reference  to  it,  how- 
ever, and,  indeed,  making  tlie  principle  still  more    plain ;  for  there  being  a  statute  forbid- 
ding actions,  unless  there  be  actual  damage  from  flowage  by  a  mill-dam,  it  was  held,  the 
period  to  found  a  presumption  did  not  commence  until  an   actual  damage  had  been  sus- 
tained, so  that  an  action  might  have  been  brought.     Indeed,  unless  there  be  some  other 
ground  on  which  to  base  the  decision  than  the  presumption  of  a  grant,  the  raising  of 
such  a  presumption,  from  a  mere  lawful   user  of  tlie  party's  property,  is  so  contrary  to 
every  authority,  that  it  is  difficult  to  know  how  the  rule  should  have  originated,  unless,  per- 
haps, in  some  ancient  local  statute  or  usage,  which  might  be  inferred  from  one  often  refer- 
red to  as  yet  in  force,  giving  extraordinary  privileges  to  persons  who  will  erect  mills.     A 
few  references  to  cases  on  presumptions  will  show  this.     Thus,  Mr.  J.  Story,  in  Ricard  v. 
Williams,  7  Wheat.  109,  says,  "  these  apply  to  incorporeal  hereditaments,  but  may  be 
rebutted  by  contrary  presumptions,  and  can  never  fairly  arise  where  all  the  circumstances 
are  perfectly  consistent  witii  the  non-existence  of  a  grant."     So  in  McCalmont  v.  Whit- 
aker,  3  Raw.  90,  Gibson,  C.  J.,  says,  mere  neglect  to  use  gives  no  right  to  another,  unless 
there  be   an  adverse  user.     Weston  v.  Adams,  8  Mass.  136,  recognising  this  rule  where 
there  lias  been  no  artificial  erections,  and  Cook  v.  Hall,  relying  on  their  existence,  countc- 
nances  the  suggestion  made   above.     Reichart  v.  Scott,  7  W.  462,  is  to  the  same  effect, 
where  it  was  decided,  possession  by  a  party  wall  being  lawful,  could  give  no  easement. 
In  Coalter  v.  Hunter,  4  Rand.  6.5,  it  was  said,  to   found  a  presumption  of  the  grant  of  a 
water-right  there  must  be  an  enjoyment  adverse  to  the  party,  excluding  the  idea  of  being 
founded  or  continued  in  a  loan  or  favour.     If  these  principles  are  correct,  and  they  can 
scarcely  be  denied,  it  is  difficult  to  see  how  the  exercise  of  an  undoubted  right  of  darning 
a  stream  in  its  course  through  one's  own  land,  not  diverting  it  from  its  course,  can  give  a 
right  against  a  party  not  affi.ctcd  by  such  an  act  who  otherwise  had  an  eriual  right.     And 
it  therefore  appears  "that  the  criterion  to  be  applied  in  such  cases,  is  that  laid  down  in  Hoy 
V.  Sterrit,  viz.,  that  such  erections,  at  whatever  time  they  may  be  made,  must  be  decided 
on  as  if  simultaneous.     The  right  acquired  by  the  opening  of  a  light  on  another's  ground, 
which  miglit  otherwise  be  supposed  to  be  adverse  to  this  rule,  is  explained  in  IVIcCalmont 
V.  Whitaker,  3  Raw.  90,  where  it  is  said,  being  a  nuisance  from  the  interruption  of  privacy, 
the  fact  that  it  was  not  abated,  or  an  action  brought  within  twenty  years,  is  only  to  be 
explained  by  presuming  a  grant. 


260  CRABBS    LAW     OF    REAL    PROPERTY. 

right  of  such  landing  to  the  lessees  by  some  former  owner  of  the  shore  at 

But  before  the  2  &  3  W.  4,  c.  71,  the  acquiescence  of  lessees  would  not 
bind  the  landlord,  nor  that  of  tenants  for  life,  the  reversioner ;  therefore, 
where  A.  a  tenant  for  life  with  power  of  jointering,  after  executing  his 
power,  gave  a  license  to  B.  to  erect  a  weir  on  his  (A.'s)  soil  for  the  purpose 
of  watering  B.'s  meadow,  then  A.  died,  and  the  jointress  entered,  after 
which  the  tenant  of  A.'s  farm  diverted  the  water  from  the  weir,  it  was  held 
in  an  action  by  the  tenant  of  B.'s  farm  against  the  tenant  of  A.'s  farm,  that 
r-^qpo-i  ^^6  uninterrupted  possession  of  the  water  for  so  many  *j^ears,  with 
L  J  the  acquiescence  of  the  tenants  for  hfe,  would  not  affect  the  rever- 
sioner, (a?) 

415.  Before  the  2  &  3  W.  4,  c.  71,  "Twenty  years  exclusive  enjoyment 
of  water  in  any  particular  manner,  afforded  a  strong  presumption  of  right  in 
the  party  so  enjoying  it,  derived  from  grant  or  act  of  Parhament  ;"(y)(l)  but 
it  seems  that  less  than  twenty  years'  enjoyment  may  or  may  not  atlbrd  such 
a  presumption  according  as  it  is  attended  with  circumstances  to  support  or 
rebut  the  right ;(?/)  as  where  land  is  sold  with  a  run  of  water  upon  it,  the 
use  of  the  water  for  less  than  twenty  years  will  give  a  man  title  to  it,  be- 
cause the  water  passes  with  the  land  ;(z)  so,  if  water  has  been  accustomed 
to  flow  along  a  channel  from  time  immemorial,  and  it  has  been  appropriated, 
the  first  owner  of  the  adjoining  land  on  both  sides  who  appropriates  it,  with- 
out doing  injury  to  any  one,  either  above   or  below  him,  acquires  such  a 
right  by  the   appropriation  that,  though  he  may  not  have  enjoyed  it  for 
twenty  years,  he  may  maintain  an   action  against  any  owner  of  the  lands 
above  who  wrongfully  diverts  the  water  from  its  ancient  channel  ;(a)(2)  but 
in  Prescott  v.  Phillip, (6)  it  was  held  that  "Nothing  short  of  twenty  years' 
undisturbed  possession  of  water  diverted  from  the  natural  channel  or  raised 
by  a  weir,  could  give  a  party  an  adverse  right  against  those  whose  lands  lay 
lower  down  the  stream,  and  to  whom  it  was  injurious,  and  that  a  possession 
of  nineteen  years,  which  was  shewn  in  that  case,  was  not  sufficient ;  so, 
altiioug-h  an  adverse  enjoyment  for  the  space  of  twenty  years,  &c.,  as  against 
a  private  individual,  is  evidence  of  a  grant  by  him,  yet  it  is  otherwise  in  the 
-^  case  of  a  public  river  navigable  by  all  the  queen's  subjects,  for  no 
L  3"^ J  ^obstruction  for  twenty  years  will  bar  a  public  right. (c)     See  fur- 
ther as  to  the  general  law  of  Prescription,  post,  under  that  title ;  also  Dig. 
P.  iii.  tit.  Prescription. 

(0  2  B.  &  B.  668 ;"  S.  C,  5  J.  B.  Moore,  527. 
,(x)  Bradbury  v.  Grimsell,  2  Wms.  Saund.  175,  n.  (d.) 
ly)  Per  Eilenborough,  C.  J.,  in  Bealey  v.  Shaw,  6  East,  208. 
(«)  Canham  v.  Fiske,  2  Cr.  &,  J.  126 ;  S.  C,  2  Tyrw.  155. 
(a)  Frankum  v.  Falmouth,  (Earl)  6  C.  &  P.  529.P 
'    (6)  Cited  in  6  East,  213,  and  recog-niscd  in  Mason  v.  Hill,  5  B.  &  Ad.  25.q 
(c)  Vooght  V.  Winch,  2  B.  &,  A.  662  ;  S.  C,  7  East,  199. 


(1)  Howell  V.  M'Coy,  3  Raw.  268,  and  then  only  to  a  reasonable  quantity ;  and  vexatious 
user  is  a  cause  of  action.     Hov  v.  Stcrrett,  2  W.  332. 

(2)  Twiss  V.  Baldwin,  9  Conn.  302. 

oEng.  Com.  Law  Reps.  vi.  308.    nld.  xxv.  526.     sld.  xxvii.  11. 


RIGHT     TO     WATER     AND     WATER    COURSES.  261 

416.  It  has  been  said  that  by  a  lease  of  a  weir  the  soil  passes,  because 
the  party  cannot  amend  it  without  the  soil.((/)  But  it  is  laid  down  by  Lord 
Coke,  that  if  a  man  grant  aquam  suam,  the  soil  shall  not  pass,  but  the  pis- 
cary within  the  water  shall  ;(e)(l)  so,  the  undertakers  of  a  navigation,  in 
whom  the  soil  is  not  vested,  have  a  mere  easement  in  the  land  through 
which  it  passes ;(/)  but  if  land  be  purchased,  through  which  a  stream  of 
water  runs,  the  water  passes  with  the  land,  and  although  the  conveyance 
be  silent  as  to  the  water,  still  the  water  will  pass  with  the  land.(g-) 

The  grantor  of  an  easement  of  this  kind  must  have  such  an  estate  as  will 
enable  him  to  grant  the  privilege  ;  therefore,  where  a  person  has  neither  the 
legal  nor  equitable  estate  in  the  property  in  respect  of  which  he  proposes  to 
grant  an  easement,  the  deed  will  be  void,  as  where  one  gave  hcense  to  an- 
other to  continue  a  channel  or  open  way  through  the. bank  of  a  river,  and 
the  deed  imported  that  the  grantor  and  another  could  grant  the  possession 
of  the  whole  of  the  river,  in  such  a  manner,  as  that  the  grantee  could  insist 
upon  its  being  kept  open  during  the  term,  but  it  afterwards  appeared  that 
other  parties  had  an  interest  in  the  river,  and  that  the  grantors  could  not 
dispose  of  all  the  Avater,  only  of  so  much  as  belonged  to  them,  it  was  held, 
that  although  the  words  of  a  grant  be  general,  yet  where  it  appears  by  the 
deed,  that  the  grantor  has  a  limited  interest,  the  grant  will  be  construed  as 
co-extensive  with  and  limited  by  the  right  of  the  grantor ;  and  in  this  in- 
stance it  appears  that  the  parties  had  not  the  power  of  creating  any  interest 
in  a  real  hereditament,  because  they  themselves  were  not  ^solely  r^qe^-i 
seised  of  such  an  hereditament,  being  interested  jointly  with  others,  L  J 
and  the  hereditament  could  onlj^  be  granted  for  a  term  by  all  the  sharehold- 
ers, who  at  least  must  be  tenants  in  common  ;  the  plaintiff  had  neither  a 
legal  nor  an  equitable  estate,  he  was  only  entitled  to  a  share  of  the  profits 
of  the  navigation;  the  legal  estate  might  have  been  in  other  persons;  the 
equitable  estate  must  have  been  in  the  whole  body  of  proprietors. (A) 

3.  By  Approj^riation  or  Occupancy. 

All.  From  what  has  already  been  stated,  it  appears  clear  that  there  can  be 
no  title  to  watr'r  by  mere  occupancy,(2)  (see  ante,  §  400,)  but  that'continued 
beneficial  enjoyment  of  a  running  stream  is  evidence  of  the  right  to  have 
the  stream  run  on  in  its  accustomed  course  ;  and  no  one  can  interfere  "with 
such  accustomed  course,  unless  justified  by  some  grant  or  license  so  to  do, 
(see  ante,  §  399  et  seq.)     If  a  mill  or  other  occupation  of  water  be  ancient, 

(rf)  1  Roll.  Rep.  259.  (e)  1  Inst.  4  b.  (/)  Ilollis  v.  Goldfinch,  1  B.  &  C.  205.o 

{g)  Canham  v.  Fiske,  2  Cr.  &  Jer.  126. 

(h)  Portmore  (Earl)  v.  Bunn,  1  B.  «St  C.  694  ;p  see  also  Paton  v.  Brebner,  1  Bligh,  42. 

(1)  B}'  the  grant  of  the  stream  of  a  river,  the  riglit  to  the  perpetual  use  of  tlie  water  not 
merely  for  fishinof,  but  as  a  water  power,  passes.  Bullen  v.  Runnels,  2  N.  H.  255.  259. 
Miller  v.  Miller,  15  Pick.  57.     Whcelock  v.  Thayer,  16  Pick.  63. 

(2)  Merritt  v.  Brinkerhoff,  17  Johns.  320.  The  right  of  the  riparian  owner  is  measured 
by  the  difference  of  the  level  of  the  water  between  the  point  where  the  stream  enters,  and 
where  it  leaves  his  land ;  and  partial  user  or  non-user  in  no  way  affects  his  right,  unless 
there  be  an  adverse  user  by  another.  M'Calraont  v.  Whitaker,  3  Raw.  90,  ante,  9  413 
n.  2.     Buddington  v.  Bradley,  10  Conn.  319. 

"Eng.  Com.  Law  Reps,  viii.  62.     rid.  188. 


202       crabb's  law  of  real  property. 

it  is  settled  that  the  owner  may  maintain  an  action  for  any  obstruction ; 
therefore,  in  Cox  v.  Matthews, (i)  it  is  said,  « If  a  man  has  a  water-course 
running  tlirough  his  ground,  and  erects  a  mill  upon  it,  he  may  bring  an 
action  for  diverting  the  stream,  and  need  not  say  antiquum  i7iolende- 
num;^\k)  and  it  appears  also  clear  from  what  follows  in  this  same  case, 
that  any  appropriation  of  ihe  water  to  a  beneficial  purpose,  gives  a  right  to 
have  the  stream  run  on  in  its  accustomed  course,  so  far  at  least  as  may  t)e 
necessary  to  serve  the  purpose,  for  it  then  added,  "upon  the  evidence  it 
will  appear  whether  the  defendant  had  ground  through  which  the  stream 
ran,  before  the  plaintifts,  and  that  he  used  to  turn  the  stream  as  he  saw 
cause,  for  otherwise  he  cannot  justify  it,  though  the  mill  be  newly  erect- 
ed ;"(/)  and  it  has  since  been  laid  down  as  a  rule,  "  that  after  the  erection  of 
^  _-,  works,  and  the  appropriation,  *by  the  owner  of  the  land,  of  a  certain 
L  -1  quantity  of  the  water  flowing  over  it,  if  a  proprietor  of  other  land 
afterwards  take  what  remains  of  the  water  before  unappropriated,  the  first- 
mentioned  owner,  however  he  might,  before  such  second  appropriation,  have 
taken  to  himself  so  much  more,  cannot  do  so  afterwards. (m) 


III.  IL^oUj  mnttf. 


§  418.  Rule  of  Law  as  to  User  generally. 

419.  Special  Cases  : — 
Weld  V.  Hornby. 
Cooper  V.  Barber. 

420.  R.  V.  Traffbrd. 


§  421.  Menzics  v.  Bredalbane. 
Exceptions  to  the  Rule. 
In  case  of  a  Grant. 

422.  Change  of  User. 

423.  Other  Cases  of  Alterations. 


§  418.  The  user  of  waters  comprehends  either  the  mode  of  using  them, 
or  the  length  of  time  that  they  have  been  used,  as  to  which  latter  point,  see 
ante,  §  415. 

The  maxim  of  law  sic  utere  tuo  ut  allenum  non  Isedas,  is  peculiarly 
applicable  to  a  water-course  ;  therefore,  in  an  early  case,  if  a  man  should 
throw  down  a  fosse  or  hedge  where  water  ran,  by  which  a  meadow  was 
surrounded,  an  assize  would  lie  ;(??)  so,  in  a  later  case,  it  was  laid  down, 
that  if  one  stop  a  stream  which  runs  through  his  land,  so  that  the  land  of 
another  is  thereby  surrounded,  this  is  a  nuisance  to  the  prejudice  of  the 
other  party  ;(o)(l)  so,  if  one  have  an  ancient  pond,  replenished  by  channels 
out  of  a  river,  it  was  held,  that  he  cannot  change  the  channels,  if  prejudice 
accrue  thereby  to  another,  although  the  effect  would  be  to  feed  the  ponds 
according  to  the  usage  ;(/»)  but  if  a  person  have  ancient  pits  replen- 
ished by  a  rivulet,  he  may  cleanse  them,  although  he  cannot  change  or 

(t)  1  Vent.  237.  ,  {k)  Per  Hale,  C.  J. 

(/)  lb.     See  also  Dy.  248  b,  cited  in  Luttrell's  case,  4  Co.  86. 
(m)  Per  Le  Blanc,  J.,  in  Bealey  v.  Shaw,  6  East,  219. 
(n)  11  H,  4,  25,  83.  (o)  9  E.  4.  35. 

{p)  Buncombe  v.  Randall,  Hetl.  32. 

(1)  Anthony  v.  Lapham,  5  Pick.  17.5.     Or  rendering  it  unfit  for  use  by  unwholsomc 
substances.     Howell  v.  M'Coy,  3  Raw.  268. 


RIGHT     TO     WATER    AND     WATER-COURSES.  263 

enlarge  them ;((?)  so,  *the  occupier  of  a  house,  who  has  a  right  to  p^ggg-i 
have  the  rain  fall  from  the  eaves  of  it  upon  another  man's  land,  L 
cannot  put  up  spouts  to  collect  the  rain,  and  discharge  it  upon  such  land 
in  a  body  ;(r)  so  the  building  of  a  new  mill  by  the  owner  of  an  ancient 
water-course  may  be  deemed  a  nuisance  ;(.s)  so,  on  the  same  principle, 
where  the  owner  of  land  through  which  a  river  ran,  appropriated  a  portion 
of  the  water  by  means  of  a  weir  of  a  given  height,  and  a  sluice  of  given 
dimensions,  it  was  held,  that  he  could  not  enlarge  the  sluice  so  as  to 
appropriate  more  water  to  himself,  to  the  prejudice  of  an  owner  lower 
down  the  stream,  who  had  appropriated  the  surplus  water  to  his  own 
use.(/) 

419.  Wher^,  under  ancient  deed,  recognising  a  right  in  the  owner  of 
an  estate  to  have  a  weir  across  a  river  for  taking  fish,  if  it  appear  that  such 
weir  was  heretofore  made  of  brushwood,  through  which  it  was  possible 
for  the  fish  to  escape  into  the  upper  part  of  the  river,  it  Avas  held,  that  he 
could  not  convert  it  into  a  stone  weir,  whereby  the  possibility  of  escape 
through  the  weir  is  debarred,  though  in  flood  times  the  fish  may  still  over- 
leap it.(?<) 

The  enhancing,  straightening,  or  enlarging  of  an  ancient  weir,  as  well 
as  the  new  erection  of  one,  for  the  purpose  of  slopping  fish  in  their  passage 
up  the  river,  is  treated  as  a  public  nuisance  by  Magna  Charta,  c.  23,  and 
12  E.  4,  c.  7;  and  the  right  to  convert  a  brushwood  into  a  stone  weir  is 
not  evidenced  by  shewing  that,  forty  years  ago,  two-thirds  of  it  had  been 
so  converted,  without  interruption,  and  the  action  for  the  injury  having 
been  brought  within  twenty  years  after  the  remaining  third  was  so  con- 
verted.(w) 

The  immemorial  enjoyment  of  water  will  not  justify  the  party  who 
possesses  it  doing  it  to  the  prejudice  of  *his  neighbour,  and  the  p*gg,y-| 
rule  will  extend  to  a  newly  erected  house  ;  therefore,  where  a  man  L 
had,  for  many  years,  penned  back  a  stream  for  the  purpose  of  irrigating  his 
land,  in  consequence  of  which  the  water  penetrated  through  the  soil  under 
ground,  and  entered  the  cellar  and  kitchen  of  a  dwelling-house  noAvly 
erected,  the  Court  decided,  though  not  unanimously,  that  he  had  not  by 
such  user  acquired  a  right  to  persist  in  penning  back  the  stream  to  the 
prejudice  of  a  neighbour,  and  the  owner  of  the  house  might  have  his  remedy 
against  him. (a*) 

420.  A  proprietor  of  land  adjoining  a  river,  has  a  right  to  raise  the  banks, 
from  time  to  time,  as  occasion  may  require,  upon  his  own  land,  so  as  to 
confine  the  flood-water  within  the  banks,  and  to  prevent  it  from  overflowing 
his  land,  with  this  single  restriction,  that  he  does  not  thereby  occasion  any 
injury  to  the  lands  or  property  of  other  persons  ;  therefore,  where  an 
indictment  against  the  proprietors  of  land  adjoining  a  river,  charged  the 

(9)  Brown  v.  Best,  1  Wilg.  171 ;  Sec  also  12  H.  4,  3 ;  Preston  v.  Mercer,  Hardr.  60  ; 
and  Sly  and  Mordant's  case,  1  T,con.  217.  -,  ^     o  /-i 

(0  Reynolds  v.  Clarke,  2  Ld.  Raym.  1399  ;  S.  C,  1  Str.  634  ;  S.  C,  8  Mod.  2  /2  ;  S.  C, 
Fort.  212. 

(s)  Prince  V.  IMoulton,  1  Ld.  Raym.  248;  S.  C,  2  Salk.  663  ;  S.  C,  Carth.  386  ;  S.  C, 
12  Mod.  131  ;  S.  C,  Comb.  442  ;  S.  C,  Holt,  192.         (/)  Bc.iley  v.  Shaw,  sup.,  see  §  417. 

(w)  Weld  V.  Hornby,  7  East,  195.  {x)  Cooper  v.  Barber,  3  Taunt.  99. 


264  crabb's   law   of   real   property. 

defendants  with  erecting  mounds  and  embankments,  whereby  the  waters 
of  the  river  were  wrongfully  forced  against  an  aqueduct  belonging  to  the 
prosecutors,  the  proprietors  of  a  canal,  to  the  injury  thereof,  and  judgment 
had  been  criven  for  the  crown,  the  court  awarded  a  venire  de  novo  on  the 
ground  that  the  special  verdict  did  not  state  with  sufficient  certainly,  what 
was  the  real  cause  of  the  penning  back  of  the  water  in  time  of  flood,  as,  in 
order  to  shew  the  defendants  guilty,  it  ought  to  appear  distinctly,  that  the 
raisinof  the  fenders  or  embankments  was  not  an  accustomed  and  rightful 
usage,  sanctioned  by  the  ordinary  right  which  every  man  prima  facie  has 
to  protect  his  own  property,  provided  he  can  do  so  without  injury  to  others  ; 
nor,  whether  the  course  which  the  flood-water  was  stated  to  have  taken, 
was  the  ancient  and  rightful  course  which  it  ought  to  take  ;  and  further, 
that  it  ought  not  to  have  been  left  in  doubt  whether  the  embankment  and 
^  *aqueduct  had  not  wrongfully  turned  back  more  water  upon  the 

L        -I  low  lands  of  the  defendants,  than  was  formerly  collected  in  times  of 
flood,  (y) 

421.  So,  the  proprietor  of  lands  along  which  there  is  a  flood-stream, 
cannot  obstruct  its  course  by  a  new  water-way,  to  the  prejudice  of  the 
proprietor  of  lands  on  the  opposite  side ;  therefore,  where  a  proprietor  of 
land  on  the  bank  of  a  river,  had  commenced  building  a  mound,  which,  if 
completed,  would,  in  times  of  ordinary  flood,  have  thrown  the  water  of  the 
river  on  the  land  of  the  opposite  proprietor,  so  as  to  flood  them,  he  was 
restrained  by  a  perpetual  interdict,  in  Scotland,  from  the  further  erection  of 
such  a  bulwark,  and  it  was  said,  on  appeal,  that  "it  was  clear,  beyond  the 
possibility  of  doubt,  that,  by  the  law  of  England,  such  an  operation  cannot 
be  carried  on.(^) 

But,  if  there  be  evidence  of  a  grant,  the  user  of  a  water-course  in  a 
particular  manner  might  be  sanctioned,  which,  but  for  such  evidence,  would 
be  illegal ;  this  may  be  collected  from  Cooper  v.  Barber,(«)  also  from 
Alder  v.  Savill,(6)  where  it  was  charged  against  the  defendants,  that  by  a 
wrongful  construction  of  their  flood-gates  and  machinery,  they  had  so  penned 
up  the  course  of  a  river,  as  to  occasion  an  overflow  of  water  upon  the 
plaintiff''s  farm,  but  it  having  been  shewn  in  evidence,  that  the  water  of  the 
mill  had  always  flowed  over  the  adjoining  meadows,  this  was  deemed  to  be 
evidence  of  a  grant ;  so,  where  a  ditch  anciently  opened  into  a  stream,  but 
the  owner  of  a  mill  on  the  stream  kept  the  opening  closed  for  twenty  years 
or  more,  without  interruption,  it  was  held,  that  such  user  would  give  the  mill 
owner  a  right  to  keep  it  shut,  and  the  owner  of  the  adjoining  land  would 
not  be  justified  in  re-opening  the  communication. (c) 

*QftQ~i      *422.  Again,  it  has  been  held  not  necessary  that  the  mode  of 
L         -'  enjoying  a  water-course  should  have  always   been  precisely  the 

iy)  R.  V.  Trafford,  1  B.  &  Ad.  874  ;«  S,  C,  in  error,  8  Bmg.  204  ;f  1  M.  &,  Sc.  401 ;  2 
Cr.  &,J.  265;  2  Tyrvv.  201. 

(2)  Mcnzies  v.  Brcadalbane,  3  Bligh,  N.  S.,  414.  418.  («)  Sup. 

(6)  5  Taunt.  454.?  (c)  Drewctt  v.  Shread,  7  C.  &,  P.  465.'' 

«Eng.  Com.  Law  Reps.  xx.  498.     ad.  xxi.  272.    Fid.  i.  156.    J-Id.  xxxii.  535. 


RIGHT     TO     WATER     AND     WATER-COURSES.  265 

same  ;(1)  therefore  where  the  plaintiff,  owner  of  a  mill,  claimed  a  prescrip- 
tive right  to  Avaler  which  had  been  accustomed  to  flow  to  his  mill,  and  the 
defendant  was  charged  with  keeping  a  hatch-dam  or  mill-head  at  a  much 
greater  height  than  he  had  been  accustomed,  so  that  the  water  was  obstructed 
from  flowing  in  its  usual  channel  and  forced  back  against  the  plaintiff's 
mill,  to  his  great  injury,  it  appeared  in  evidence  that  the  old  mill  had  been 
burnt  down,  and  the  plaintiff  had  built  the  mill  in  question  with  a  Avheel  of 
the  same  dimensions,  and  on  the  same  level  with  the  former  one,  since 
which  time  he  had  erected  a  new  wheel  of  diflerent  dimensions,  which  re- 
quired less  water,  but  there  was  no  proof  that  the  owner  of  the  lower  mill 
had  received  any  injur}'^  in  consequence  of  altering  the  wheel ;  it  was  held, 
therefore,  that  the  plaintiff  might  maintain  an  action  for  the  injury  to  his 
mill,  although  he  had  not  enjoyed  it  in  that  state  for  twenty  years,  and  it 
was  no  defence  to  such  an  action  that  the  plaintiff  had,  within  a  few  years, 
erected  in  his  mill  a  wheel  of  different  dimensions,  inasmuch  as  the  defen- 
dant was  not  prejudiced  thereby ;((/)  but  if  the  owner  of  a  water-mill, 
worked  by  a  ground-shot  wheel  at  a  low  head  of  water,  alter  the  wheel  to  a 
breast-shot  wheel,  which  requires  a  high  head  of  water,  and  after  that  for 
twenty  years  and  more  discontinue  the  use  of  the  breast-shot  wheel,  his 
discontinuance  will  cause  him  to  lose  the  right  to  the  high  head  of 
water,  (e)(2) 

423.  On  the  same  principle,  the  change  of  a  mill  from  a  fulling  to  a  grist 
mill  or  the  like,  where  no  injury  was  caused  to  any  other  person,  was  held 
not  to  destroy  the  easement  ',[f\  so,  not  by  a  trifling  alteration  in  the 
course  of  a  water-course,  as  Avhere  a  party  in  order  to  make  the  enjoy- 
*ment  of  a  stream  that  meandered  more  commodious  to  himself,  ^^„^^^ 
varied  the  course  a  little  by  making  the  water  to  run  in  a  straight  L  '  J 
line  ;(o-)  so,  the  cleansing  a  water-course  will  not  subject  a  person  to  an 
action  if  the  ancient  channels  be  not  enlarged, (A)  for  the  owners  of  a  water- 
course are  bound  to  keep  up  due  repairs  and  cleansings  ;(z)  so,  in  an  early 
case  it  was  said  if  one  were  bound  to  scour  a  ditch  where  the  water  ran, 
and  he  neglected  so  to  do,  an  action  of  trespass  lay.(y)  See  also  8  H.  7,  5; 
Morgan  v.  Evans, (A:)  Lord  Egremont  v.  Pulman,(/)  in  which  last  case  the 
defendant  was  held  liable  to  the  reversioner  in  case,  for  the  non-repair  of  a 
gutter,  although  the  mischief  had  been  occasioned  by  the  reversioner's 
tenant. 

{(I)  Saunders  v.  Newman,  1  B.  &,  A.  258.  (e)  Drewett  v.  Sheard,  7  C.  &,  P.  465.» 

(  f)  Luttrel's  case,  4  Co.  86.  (g)  Hall  v.  Swift,  4  Bing.  N.  R.  38.'' 

(h)  Brown  v.  Best,  1  Wils.  174.  (i)  Lynn  (Mayor,  &,c.)  v.  Turner,  Cowp.  86. 

O)  11  H.  4,  83.  (Jt)  2  Lutw.  1515. 

(i)  Moo.  &  Malk.  404.<= 

(1)  Ante,  §  405,  n.  1.     Blanchard  v.  Baker,  8  Greenleaf,  253. 

(2)  Hazard  v.  Robinson,  3  Mason,  273. 

»Eng.  Com.  Law  Reps,  xxxii.  585.    ^Id.  xxxiii.  362.     'Id.  xxii.  341. 


266  crabb's  law   of    rkal  property. 


IV.  H^ota  aost 


§  424.  By  destroying  the  Tenement. 
By  Relinquishment. 


§  425.  No   Relinquishment  by  Unity   of 
Possession. 


426.  Extinguishment  by  Act  of  Party. 


§  424.  The  pulling  down  a  house  for  the  purpose  of  repair  does  not  by 
the  law  of  England,  when  construed  most  strictly,  cause  the  loss  of  any 
easement  attached  to  it,  provided  there  is  evidence  of  an  intention  to  rebuild 
it  within  a  reasonable  time  ;(m)  so,  a  change  in  the  mode  of  enjoying  an 
easement  does  not  destroy  it.(n)  But  it  is  said  that  "  what  is  gained  by 
occupancy  may  be  lost  by  abandonment  ;"(o)  therefore,  a  license  given  by 
the  plaintiff,  owner  of  a  mill,  to  the  defendant,  to  cut  down  and  lower  the 
r**??!!  ^^'^^'  ^^'^  *°  erect  a  weir  in  a  river,  whereby  part  of  the  water  *was 
L  -'  diverted  from  his  mill,  was  held  to  be  a  relinquishment  of  that  quan- 
tity of  M-ater ;  and  after  having  clearly  signified  such  relinquishment,  and 
suffered  others  to  act  upon  the  faith  of  such  relinquishment,  and  to  incur 
expense  in  doing  the  very  act  to  which  his  consent  was  given,  an  action 
was  not  maintainable  against  the  defendant  for  continuing  the  weir ;(/))  and 
it  was  further  said,  "  Suppose  a  person,  who  formerly  had  a  mill  upon  a 
stream,  should  pull  it  down,  and  remove  the  works  with  the  intention  never 
to  return,  could  it  be  held  that  the  owner  of  other  land  adjoining  might  not 
erect  a  mill  and  employ  the  water  so  relinquished  ?  or  that  he  could  be  com- 
pellable to  pull  down  his  mill,  if  the  former  mill-owner  should  change  his 
determination  and  wish  to  rebuild  his  own  ?"(7^) 

425.  Though  a  rent  and  a  way  may  be  extinguished,  yet  it  is  otherwise 
with  a  water-course,  for  that  is  a  thing  of  necessity;  therefore,  in  Shury  v. 
Piggott,(/))  an  action  was  brought  for  obstructing  a  stream  of  water  running 
over  the  defendant's  land  to  the  pool  of  the  plaintiffs,  situate  in  a  close  which 
was  part  of  the  plaintiff's  rectory.  The  defendant  pleaded  that  the  land 
over  which  the  water  ran,  and  the  plaintiff's  close,  were  both  part  and 
parcel  of  the  manor  of  Markham,  and  that  King  Hen.  8,  being  seised  of  the 
said  manor  in  his  demesne  as  of  fee,  granted  the  land  over  which  the  water 
ran  to  one  under  whom  the  defendant  claimed,  and  the  question  was,  whether 
the  unity  of  the  ownership  in  the  king  had  extinguished  the  easement ;  and 
it  was  resolved  by  the  whole  Court,  that  the  water-course  was  not  extin- 
guished;(//)(!)  and  it  was  likened  to  the  case  of  a  warren,  or  a  right  to  drive 

(w)  Luttrel's  case,  4  Co.  86. 

(n)  Hall  V.  Swift,  4  Bing.  N.  C.  381  ;i  see  ante,  §  423. 

(o)  Per  Tindal,  C.  J.,  in  Liggins  v.  Inge,  7  Bing.  682  ;=  S.  C,  5  M.  &  P.  712. 
(p)  Per  Tindal,  C.  J.,  in  Liggins  v.  Inge,  7  Bino-.  632 ;'  S.  C,  5  M.  &  P.  712. 
(7)  Palm.  444 ;  S.  C.  Poph.  166  ;  S.  C,  3  Bulst  339  ;  S.  C,  Noy,  84 ;  S.  C,  Latch,  153  ; 
S.C,  W.Jo.  145. 


(1)  Hazard  v.  Robinson,  3  Mason,  272.    But  in  the  case  of  an  artificial  water-course,  it 
has  been  held,  the  right  being  extinguished  as  an  easement  by  unity  of  possession,  could 

JEng.  Com.  Law  Reps,  xxxiii.  382.-        'Id.  xx.  287. 


RIGHT     TO    WATER     AND    WATER-COURSES.  267 

beasts  to  pasture  in  a  forest,  which  rights  are  not  extinguished  by  unity ; 
and  so  it  is  of  a  gutter,  which  like  a  water-course  has  a  separate  existence. ((/) 
See  *also  11  H.  7,  25,  where  it  was  decided,  that  a  customary  right  p,(,3.y2"| 
in  the  city  of  London  to  have  a  gutter  running  in  another  man's  land  L 
was  not  extinguished  by  unity  of  possession. 

426.  But  "  if  a  man  hath  a  stream  of  water  which  runneth  in  a  leaden 
pipe,  and  he  buys  the  land  where  the  pipe  is,  and  cuts  the  pipe  and  de- 
stroys it,  the  water-course  is  extinct,  because  he  thereby  declares  his  inten- 
tion and  purpose  that  he  does  not  wish,  to  enjoy  them  together  ;"(r)  if,  how- 
ever, "A  man  having  a  mill  and  a  water-course  over  his  land,  sells  a 
portion  of  the  land  over  which  the  water-course  runs,  in  such  a  case  by 
necessity  the  watercourse  remaineth  to  the  vendor,  and  the  vendee  cannot 
stop  it.(s) 


V.  Dtstuvijance  of  tlie  ^t'sUt  to  sst-atcr,  mti  the  Ilcmctiies, 

This  comprehends  first  the  injuries,  and  next  the  remedies. 

I.   2rt)c  Knjurfcs. 

§  427.  Acts  of  Disturbance. 

428.  Right  of  Obstruction,  how  acquired. 


§  427.  Any  act  which  alters  the  accustomed  course  of  the  water  is  an 
obstruction. 

If  a  person  stops  the  current  of  a  stream  which  has  irnmemorially  flowed 
in  a  given  direction,  and  thereby  prejudices  another,  he  subjects  himself  to 
an  action  ;(f)  so,  for  stopping  a  water-course,  by  which  means  his  land  was 
drowned  ;(z/)  so,  for  building  a  mill  to  the  hinderance  of  the  *river  ;(a:)  r*37^1 
so,  for  throwing  down  a  weir  to  the  injury  of  the  plaintiff 's  fishery  ;(3/)  L  -^ 
so,  for  breaking  down  a  pen-stock  ;(z)  so,  for  putting  stake-nets  in  a  river  ;(a) 

(7)  Palm.  444  ;  S.  C,  Poph.  176  ;  S.  C,  3  Bulst.  339  ;  S.  C,  Noy,  84  ;  S.  C,  Latch,  153  ; 
S.  C,  W.  Jo.  145. 

(r)  Lady  Brown's  case,  cited  in  Shiiry  v.  Piggott,  Poph.  170. 

(s)  Per  Doddcridge,  J.,  in  Shury  v.  Piggott,  supp. 

(t)  Saunders  v.  Newman,  1  B.  &.  A.  258. 

(«)  Sly  and  Mordant's  case,  1  Leon.  247  ;  S.  P.,  Westborne  v.  Mordant,  Cro.  El.  191. 

(x)  Prince  v.  Moulton,  1  Ld.  Raym.  248 ;  S.  C,  2  Salk.  663  ;  Carth.  386 ;  12  Mod. 
131  ;  Comb.  442 ;  Holt,  192.  (y)  Weld  v.  Hornby,  7  East,  195. 

(z)  Cooper  v.  Barber,  3  Taunt  99.  (a)  9  E.  4,  35. 

not  arise  as  against  a  grantee  of  the  land  without  a  reservation.     Manning  v.  Smith,  6 
Conn.  291. 


268 


CRABBS  LAW  OF  REAL  PROPERTY. 


SO,  for  corrupting  a  stream  of  water  ;(^^)(1)  so,  for  diverting  a  water-course 
by  digging  pits  or  enlarging  channels  ;(c)  so,  for  diverting  a  course  of  water 
to  the  injury  of  the  plaintiff's  mill;((/)  so,  for  straitening  a  channel,  by 
which  the  usual  flow  of  the  stream  is  interrupted  ;(e)  so,  for  making  a  ditch 
across  a  river. (y) 

428.  But  every  interference  with  a  water-course  claimed  by  another  will 
not  render  the  author  of  it  liable,  for  when  a  person  has  been  accustomed  to 
turn  a  stream  according  to  his  pleasure,  he  may  justify  so  doing,  although  it 
operate  to  the  prejudice  of  another;  this  may  be  inferred  from  the  words  of 
the  court  in  Cox  v.  Matthews, (g-)  where  it  is  said  in  reference  to  the  plead- 
ings, "  It  would  appear  in  evidence  whether  the  defendant  had  ground 
through  which  the  stream  ran  before  the  plaintiff's,  and  whether  the  de- 
fendant used  to  turn  the  stream  as  he  saw  Jit,  for  that  otherivise  he  coidd 
tiot  justify  it  ;^\h)  but  this  applies  only  to  private  rights,  therefore, 
although  adverse  enjoyment  for  the  space  of  twenty  years  is  as  against  a 
private  individual  evidence  of  a  grant,  yet  it  is  otherwise  in  the  case  of  a 
public  navigable  river,  for  no  obstruction  for  twenty  years  will  bar  a  public 
right.(iX2) 


[*374] 
§  429. 


*  II.  E\)z  J^cmrtitcs. 


Wliat  Remedies  for  Disturbance  of 
the  Right. 

430.  By  Act  of  the  Party. 

431.  Taking  reasonable  Care. 

432.  By  Action  on  the  Case. 

433.  Case  or  Trespass. 

434.  Right  of  Election. 

435.  By  Action  of  Covenant. 

436.  By  Ejectment. 
Assizes,  &c. 

437.  By  Arbitration. 


§  437.  By  Relief  in  Equity. 

438.  Right  of  Action,  when  given. 

439.  Acquired  by  Appropriation. 

440.  Parties  to  the  Action. 

441.  Party  creating  or  continuing  tlie 

Disturbance. 

442.  Request    to   Party,   not  the  ori- 

ginal  Creator   of  the  Disturb, 
ance. 

443.  Party   in    Possession  or  Rever- 

sion. 


§  429.  Under  this  head  may  be  considered  first,  what  remedies  may  be 
had  for  disturbances  of  the  right  to  water;  next,  what  gives  a  right  of 
action ;   and  lastly,  by  whom,  and  against  whom,  the  remedy  may  be  had. 

The  remedies  to  be  had  in  such  cases  are,  either  by  act  of  the  party,  b}' 
action,  arbitration,  or  by  application  to  a  court  of  equity. 

430.  A  party  entitled  to  a  water-course  may  redress  himself  by  abating 

(6)  13  H.  7,  26 ;  S.  C,  cited  9  Co.  59.  (c)  Brown  v.  Best,  1  Wils.  174. 

{,d)  22  H.  6,  14,  cited  1  Roll.  Abr.  107;  S.  C,  cited  3  Ridg.  319.^ 

(e)  48  E.  3,  27.  (  f)  Biccot  v.  Ward,  Hob.  193. 

(g)  1  Vent.  237.  (h)  Per  Hale,  C.  J.,  lb. 

(i)  Vooght  V.  Winch,  2  B.  &  A.  662.     See  also  Weld  v.  Hornby,  sup. 


(1)  Howell  V.  M'Coy,  3  Raw.  269. 

(2)  Rung  V.  Shoenburgcr,  2  W.  23. 


Commonwealth  v.  Wiltcnbcrger,  7  W.  450. 


RIGHT     TO    WATER    AND    WATER-COURSES.  289 

the  nuisance,  as  if  a  man  make  a  ditch  in  his  land,  by  which  the  water 
accustomed  to  run  to  the  mill  of  another  becomes  diminished,  the  aggrieved 
parly  may  fill  in  the  ditch;  and  it  is  said  that  his  entry  into  the  land  of  the 
offending  party  is  allowable  for  that  purpose  ;{j){l)  so,  where  the  plaintiff 
had  erected  a  dam  for  supporting  a  fish-pond  on  his  own  soil,  but  the  dam 
stopped  a  rivulet  which  the  defendant  enjoyed  for  the  benefit  of  his  cattle, 
whereupon  he  entered  and  abated  the  nuisance,  and  the  Court  refused  to 
set  aside  a  verdict  in  his  favour  ;(A;)  so,  if  water  runs  through  the  land  of  a 
man,  and  he  so  stop  it  in  its  course  as  that  it  surrounds  the  land  of  the  other, 
it  is  competent  to  this  latter  to  remove  the  obstacle  which  *hinders  p.^.^«.p.-i 
the  escape  of  the  water;  so,  every  inhabitant  of  a  vill  near  which  a  L  -' 
stream  runs  may  destroy  every  impediment  to  its  course,  otherwise  the  place 
might  be  inundated  ;(m)  and  if  a  lawful  water-course  be  impeded,  for  want 
of  repair  or  otherwise,  the  injured  party  may  quietly  abate  the  nuisance  : 
therefore,  where  the  tenant  of  a  house  had  a  conduit  for  the  purpose  of  con- 
veying water  thereto,  which  passed  through  the  land  of  another,  it  was  held, 
that  he  might  dig  the  land  of  the  latter  for  the  repair  of  the  pipe  ;(n)  and  it 
made  no  difference  that  the  plaintiff  in  this  case  was  a  grantee  of  the  land, 
for  the  land  passed  cum  oncre  ;  and  so,  a  party  might  be  justified  in  remov- 
ing a  hatch  that  impeded  the  course  of  the  water  to  his  mill,  unless  it 
appeared  to  have  been  made  in  exercise  of  a  right. (o) 

431.  In  abating  a  private  nuisance,  a  party  is  bound  to  take  reasonable 
care  that  no  more  damage  be  done  than  is  necessary  for  effecting  the  pur- 
pose ;(;j)  but  the  same  care  is  not  necessary  in  abating  a  public  nuisance  •,(q\ 
yet,  in  the  case  of  a  private  nuisance,  the  party  aggrieved  will  not  be 
answerable  for  any  damage  resulting  from  the  act,  if  he  abate  no  more  than 
is  necessary ;  therefore,  where  one  erected  a  mill-dam  partly  on  his  own 
land  and  partly  on  the  land  adjoining,  upon  which  the  owner  of  the  adjoin- 
ing land  pulled  down  the  part  on  his  own  land,  and  the  whole  dam  fell 
down,  he  was  held  to  be  justified  ;(r)  but  he  may  not  abate  more  than  is 
absolutely  necessary  ;(2)  therefore,  where  the  plaintiff  had  a  right  to  irri- 
gate his  meadow  by  placing  a  dam  of  loose  stones  across  the  stream,  and 
occasionally  a  board  and  a  fender,  and  he  fastened  the  board  with  two 
stakes,  which  he  had  no  right  to  do,  the  defendant  was  held  justified  in 
removing  the  stakes,  although  not  so  in  *removingthe  board,  Greens-  .,,„„-, 
lade  v.  Halliday  ;(s)  and  it  was  there  said,  "If  a  party  who  has  a  L  -^ 
right  to  erect  a  weir,  erects  buttresses  thereto,  although  there  might  be  an 
encroachment  on  the  land  of  another,  which  would  justify  him  in  pulling 

(i )  9  E.  4.  35,  (k)  Raikcs  v.  Townsend,  2  Smith,  9.  (/)  8  E.  4,  5. 

(w)  9  E.  4.  35.  (n)  Guy  v.  Brown,  Moor.  644. 

(0)  Wakeman  v.  West,  8  C.  &  P.  105.i^  (p)  W.  Jo.  222. 

iq)  Lodie  V.  Arnold,  2  Salk.  458.  (r)  Wigford  v.  Gill,  Cro.  EI.  269. 

(s)  6  Bing.  379  ;=  S.  C,  4  M.  &,  P.  75. 

(1)  Colburn  v.  Richards,  13  Mass.  420.  Dyer  v.  Depui,  5  Whart.  584.  He  cannot  turn 
the  water  back  on  the  land  of  the  party  increasing-  the  natural  flow  of  the  stream  by 
means  of  ditches.    Williams  v.  Gale,  3  Har.  &  Johns.  231. 

(2)  Dyer  v.  Depui,  5  Whar.  584.  Williams  v.  Gale,  3  Har  &,  Johns.  234. 

•■Eng.  Com.  Law  Reps,  xxxiv.  313.        cjd.  xix.  106. 
November,  1846.— 18 


270  crabb's  law    of    real   property. 

them  down,  yet  he  would  have  no  right  to  pull  down  or  demolish  the  weir 
also."(n  So,  the  thing  complained  of  cannot  be  abated  until  it  actually 
becomes  a  nuisance  ;  so,  that  if  one  see  his  neighbour  erecLjng  that  which 
in  all  probability  will  ultimately  be  such,  it  cannot  be  abated  as  long  as  it 
continues  inoffensive  ;(w)  but  notice  ought  to  be  given  to  the  offending 
party  not  to  proceed,  otherwise  it  is  doubtful  whether  the  nuisance  can 
afterwards  be  abated. (u) 

432.  The  ordinary  remedy  now  is  an  action  on  the  case  ;  thus,  where  the 
owners  of  property  have,  by  long  enjoyment,  acquired  special  rights  to  the 
use  of  water  in  its  natural  state  as  it  was  accustomed  to  flow,  by  way  of  par- 
ticular easement  to  their  owg  properties,  and  not  merely  a  use  which  is 
common  to  all  the  queen's  subjects,  an  action  on  the  case  may  be  main- 
tained for  a  disturbance  of  the  enjoyment  ;(a')  but  where  the  injury,  if 
any,  is  to  all  the  queen's  subjects,  the  only  remedy  is  by  indictment. (y) 

433.  As  to  whether  the  action  should  be  case  or  trespass,  has  been  a 
matter  of  doubt  in  some  cases.     The  general  rule  is,  that  where  the  damage 
does  not  immediately  result  from  the  act  complained  of,  it  is  consequential, 
and  case  is  the  proper  form ;  on  the  other  hand,  where  the  act  itself,  and  not 
the   consequence   of    it,   occasions    the   mischief,   trespass   is   the   proper 
pioi^t^-i   remedy  •,{z^  therefore,  where  the  *defendant  caused  water  to  over- 
L         -^   flow  the  plaintifi''s  fishery,  by  throwing  down  a  weir  in  the  plain- 
tiff's close,  this  was  held   to  be   a  plain   trespass. (rt)     On  the  other  hand, 
where  the  defendant  dug  ditches,  and  so  diverted  tlie  plaintiff's  water  out 
of  the  river,  an  action  on  the  case  was  brought ;  and  it  was  moved  to  arrest 
the  judgment,  because  it  did  not  appear  that  the  diversion  of  the  water  was 
consequential  to  the  digging  of  the  ditches,  and  therefore  that  trespass  was 
the  proper  form  ;  but  the  Court  said,  that  the  injury  should  be  intended 
after  the  verdict  to  have  been  consequential  ;(6)  so,  it  has  been  held  that 
where  an  injury  has  been  done  of  a  consequential  nature,  to  the  comfort  and 
convenience  of  another,  effected  partly  by  an  act  of  trespass,  and  partly  by 
an  act  that  was  not  a  trespass,  but  from  either  of  which  the  injury  must  and. 
would  have  resulted,  case  may  be  maintained.  Wells  v.  Ody  ;(c)  and  it  was 
said,  in  that  case,  "Suppose  a  person's  premises  are  injured  by  the  chang- 
ing of  a  water-course,  by  the  erection  of  a  weir  partly  on  the  land  of  the 
plaintiff  and  partly  on  the  land  of  the  defendant,  the  erection  of  that  which 
is  on  the  plaintiff's  land  would  be  the  subject  of  an  action  of  trespass,  and 
doing  the  same  thing  on  the  defendant's  land  would  be  the  subject  of  an 
action  on  the  case.     If  both  acts  are  done  at  the  same  time,  and  form  part 
of  one  res  gesta,  and  the  consequential  damage  is  in  respect  of  both  to- 
gether, it  appears  to  me,  that  the  plaintiff  may  bring  his  action  of  trespass, 

(0  Per  Tindal,  C.  J.,  lb. 

(u)  R.  V.  Wharton,  12  Mod.  510;  S.  C,  Holt,  499  ;  Bridgm.  47. 
(v)  Com.  Dig.  tit.  Action  on  the  Case  for  a  Nuisance,  citing  1  Morg.  Vad.  Mec.  297. 
(x)  R.  V.  Bristol  Dock  Company,  12   East,  429. 
((/)  lb.     See  also  Smith's  case,  14  Vin.  Abr.  394. 
(z)  Reynolds  v.  Clarke,  1  Str.  G36 ;  Wells  v.  Ody,  1  M.  &,  W.  452. 
(o)  Courtney  v.  Collet,  1  Ld.  Raym.  274 ;  S.  C,  12  Mod.  164,  cited  also  2  Bl.  898. 
(6)  Leveridge  v.  Hoskins,  11  M6d.  257.  (c)  1  M.  &  W.  452. 


I 


RIGHT    TO    WATER    AND    WATER-COURSES.  271 

• 

or  his  action  on  the  case."((/)  But  it  appears  that  trespass  cannot  be  joined 
with  case  ;(e)  yet  the  tenant  may  bring  an  action  of  trespass  for  the  damage 
to  his  possession,  and  the  reversioner  an  action  on  the  case  for  the  damage 
to  tlie  inheritance, (/)  for  the  reversioner  cannot  bring  trespass  for  an  injury 
to  the  possession. (/)     See  further,  infra,  §  443. 

*434.  The  Courts  seem  to  have  leaned  at  all  times  to  the  r^n^on 
action  on  the  case,  or  at  least  to  the  right  of  electing  either  to  sue  L  J 
for  the  trespass,  or  to  waive  that  and  sue  for  the  consequential  damage 
only  ;  thus,  in  Whiting  v.  Beenway,(g-)  it  was  held,  that  action  on  the  case 
was  maintainable  ao-ainst  the  defendant,  for  having  erected  a  weir  or  bank, 
by  means  whereof  the  water  of  a  certain  stream  overflowed  the  plaintiff's 
meadow ;  and  it  is  there  said,  that  the  bank  was  laid  as  erected  vi  et  armis, 
and  not  the  overflowing,  which  was  the  injury  there  complained  of;  and  in 
F.  N.  B.  Trespass,  87,  H,,  a  similar  injuiry  was  held  to  be  the  subject  of 
trespass  ;(A)  and  in  Smith  v.  Goodwin, (z)  it  was  held,  that  though  trespass 
might  lie,  yet  a  plaintiff"  was  at  liberty  in  every  case  to  waive  the  trespass, 
and  bring  case  for  the  consequential  injury. 

435.  An  action  of  covenant  will,  it  seems,  lie  for  an  obstruction  to  a 
water-course,  where  the  case  will  admit  of  it,  although  in  Carlisle  (Mayor) 
V.  Blamire,(A:)  where  a  party  had  sold  to  the  corporation  of  Carlisle  so  much 
of  the  river  Caldew  running  through  his  lands  as  should  be  sufficient  for  the 
grinding  of  corn  at  all  times  at  the  city  mills,  with  a  covenant  that  the  gran- 
tor should  not  divert  or  obstruct  any  part  of  the  vv'ater  so  granted,  it  was 
held,  that  the  defendants,  being  only  devisees  of  an  equitable  estate,  could 
not  be  liable  to  an  action  of  covenant  as  assignees. 

436.  An  action  of  ejectment  will  not  lie  for  a  water-course  or  rivulet,  as 
such,  because  the  sheriff  cannot  give  possession  of  a  thing  which  is  forever 
'running  ;(^)(1)  therefore,  where  error  was  brought  on  a  judgment  because 

ejectment  had  been  maintained  de  aquae  cursu,  it  was  reversed  by  the  un- 
animous opinion  of  the  Court  ;(?n)  but  it  was  said  *that  such  an  ^^^^q-, 
action  would  lie  for  a  gorce  or  pool,  because  those  words  compre-  L  -1 
hend  both  land  and  water  ;(n)  so,  where  the  land  under  the  water  does  not 
belong  to  the  plaintiff",  but  the  water,  then  an  action  on  the  case  only  can  be 
brought  for  any  diversion  of  it.(??) 

Formerly  an  assize  of  nuisance  or  a  quod  permittat,  or  a  prsecipe  quod 
reddat,  might  be  brought  for  obstructions,  but  these  are  among  the  real 
actions  which  have  been  abolished  by  the  3  &  4  W.  4,  c.  27,  s.  36. 

(d)  Per  Lord  Abinger,  C.  B.,  in  Wells  v.  Ody,  sup.  (e)  Courtney  v.  Collet,  sup. 

(/)  Beddingfield  v.  Onslow,  3  Lev.  209. 

ig)  1  Roll.  Abr.  107,  citing  22  H.  6.  15. 

(h)  See  also  Brandscorab  v.  Bridges,  1  B.  «&.  Cr.  145. P 

(i)  4  B.  &  Ad.  419.q  (A)  8  East,  487.  (!)  Adams  on  Eject.  20. 

(m)  Challenor  v.  Thomas,  Yclv.  143  ;  S.  C,  I  Brownl.  142.  (h)  lb. 


(1)  Lefe\Te  v.  Lefevre,  4  S.  &  R.243. 
pEng.  Com.  Law  Reps,  viii,  43,    ild.  xxiv.  89. 


272  crabb'slaw    of    real    property. 

437.  Rights  respecting  water-courses  may  likewise  be  the  subject  of 
reference  to  arbitration. (o) 

So,  relief  may  in  some  cases  be  had  in  equity,  where  it  could  not  be  had 
at  law  ;  thus  in  the  case  of  laches,  as  where  a  party  stood  by  and  saw  his 
water-course  diverted,  but  instead  of  preventing  it,  encouraged  the  work 
while  it  was  going  on,  and  afterwards  brought  his  action,  the  defendant  on 
his  application  to  the  Court  of  Chancery  obtained  an  injunction.(/))  Short 
V.  Taylor(/))  is  a  similar  case,  in  which  Lord  Somers  also  granted  an  injunc- 
tion: so,  in  the  case  of  long  possession  of  a  water-course  by  the  plaintiff,  the 
defendant  having  cut  a  channel  in  his  own  lands  and  set  up  a  sluice  so  as  to 
divert  the  stream,  the  Court  on  proof  by  the  plaintiff  decreed  for  him,  with- 
out sending  him  to  try  his  right  at  law  •,{q)  but  as  a  rule,  equity  will  not 
grant  relief  until  the  parties  have  tried  their  rights  at  law  ;(r)  so,  if  there 
have  been  laches,  and  the  erections  complained  of  have  been  suffered  to 
remain  any  length  of  time,  the  Court  will  not  interpose  by  injunction. (s) 

438.  As,  according  to  a  well-known  rule  of  law,  an  action  on  the  case 
^           cannot  be  maintained  for  a  tortious  act,  *unless  the  plaintiff  shew 

L  ^  some  actual  damage  resulting  from  the  act  to  himself,  it  has  been 
said  that  this  rule  ought  to  be  applied  to  water-courses,  and  that  therefore 
the  mere  obstruction  of  the  water,  which  has  been  accustomed  to  flow  through 
the  plaintiff's  lands,  does  r\oi  per  se  afford  a  ground  of  action,  and  that  it  is 
incumbent  on  the  party  complaining  of  the  diversion  of  the  stream  to  shew 
that  he  has  sustained  some  damage  thereby,  and  also  that  he  has  applied 
the  water  to  some  beneficial  purpose.(?)(l) 

439.  A  person  may  gain  a  title  to  water  in  some  cases  by  appropriation, 
and  may  maintain  an  action  for  obstructing  it,  although  he  has  used  the 
water  for  less  than  twenty  years,  as  where  he  purchases  land  with  a  run  of 
water  upon  it  ;(i<)  or,  where  a  proprietor  of  lands  adjoining  to  a  stream  has 

(o)  Alder  V.  Savill,  5  Taunt.  454.' 

( p)  Anon.,  2  Eq.  Ca.  Abr.  523,  pi.  3.  (9)  2  Vern.  391,  n.  1, 

(r)  Wliitchnrch  v.  Hidc,2  Atk.  391. 

(s)  lb.  See  further,  Bush  v.  Western,  Free.  Chan.  536 ;  Dorset  (Duke  of)  v.  Girdler, 
Id.  531 ;  Hilton  v.  Ld.  Scarborough,  4  Vin.  Abr.  425 ;  Weller  v.  Smcaton,  1  B.  C.  C.  572  ; 
S.C,  1  Cox,  102. 

(/)  Williams  v.  Morland,  2  B.  &  Cr,  913  p  S.  C,  4  D.  &.  R,  583.  But  see  Hebbleth- 
waite  V.  Palmer,  3  Mod.  48;  S.  C,  nom.  Heblethwait  v.  Palmes,  Carth.  84;  S.  C,  noni, 
Keblethwaite  v.  Palmer,  1  Show.  64 ;  S.  C,  nom.  Palmer  v.  Keblethwaite,  2  Show.  243  ; 
S.  C,  nom.  Hcblewait  v.  Palmer,  Holt,  5 ;  S,  C,  nom.  Palmer  v.  Heblethwait,  Skin.  65, 
175  ;  S.  C,  nom.  Nnlmes  v.  Hoblcthwayte,  3  Lev.  133,  where  it  was  expressly  held  that 
an  occupier  of  land  might  recover  for  the  loss  of  the  general  benefit  of  flowing  water,  with- 
out showing  any  special  use  or  damage.  See  also  Mason  v.  Hill,  (5  B.  &  Ad.  26,')  where 
the  dicta  in  Williams  v.  Morland  (sup.)  are  much  discussed.     Also  ante,  §  399  et  seq. 

{u)  Canham  v.  Fiskc,  2  Cr.  &  Jer.  126 ;  S.  C,  2  Tyrw.  155. 


(1)  As  the  right  is  acquired  by  means  of  an  obstruction  long  enough  to  give  a  presump- 
tion of  a  grant,  the  rule  as  stated  in  the  text  would  have  the  anomalous  effect  of  destroying 
a  right  to  a  future  valuable  use  of  property  by  an  adverse  user,  which  at  the  same  time 
coukl  not  be  redressed  by  action.  This  doctrine  has  been  discussed,  ante,  §  413,  n.  2.  See 
also  the  remark  of  Weston,  J.,  in  Blanchard  v.  Baker,  8  Greenl.  268,  that  such  a  rule 
would  have  the  effect  of  making  the  enjoyment  of  this  s])ecics  of  property  dependent  on  the 
will  of  another.  See  also  Bolivar  v.  Nepcuset,  1 6  Pick.  246,  that  the  law  presumes  damage 
from  such  acts.     Butman  v.  Hussey,  3  Fairf.  407. 

tEng.  Com.  Law  Reps.  i.  156.     ^Id.  ix.  269.     'Id.  xxvii.  11. 


I 


RIGHT    TO    WATER    AND    WATER-COURSES.  273 

altered  the  course  of  the  stream,  he  may  maintain  an  action,  although  he  has 
not  enjoyed  it  in  its  altered  state  for  Iwentj''  years  ;(a:)  so,  the  appropriator 
of  a  stream  that  has  been  accustomed  to  flow  aloncj  a  channel  from  time 
immemorial. (y) 

440.  The  owner  of  land  through  which  a  natural  stream  of  water  runs, 
may,  after  erecting  a  mill  on  his  own  land,  maintain  an  action  against  the 
proprietor  of  works,  for  an  injury  to  his  mill  bj'  a  further  subsequent  diversion 
of  the  stream  ;(z)  for  the  proprietor  of  lands  contiguous  to  a  stream  may,  as 
soon  as  he  is  injured  by  the  diversion  of  the  *water,  maintain  an  ,-^00 n 
action  against  the  party  so  diverting  it.(o)  L        -^ 

441.  As  a  rule,  an  action  on  the  case  lies  against  the  person  creating  the 
disturbance,  whether  owner  or  not  ;(6)  so,  for  the  party  continuing  the  nui- 
sance ;  therefore,  where  a  man  fixed  a  small  pipe  and  cock  into  a  main-pipe, 
whereby  he  diverted  a  watercourse  from  the  house  of  another,  it  was  held 
that  an  action  lay  against  his  widow,  who,  after  his  death,  continued  the 
nuisance  ;(c)  so,  in  the  case  of  a  feoffment,  the  feoffee  will  be  held  hable,  as, 
where  the  proprietor  was  annoyed  by  the  dropping  of  water  from  an  adjoin- 
ing house,  it  was  held,  that  the  defendant,  a  feoffee,  Avas  liable,  Rolfe  v. 
Rolfe,  cited  in  Beswick  v.  Combden,(f/j  which  last  was  the  case  of  a  feoffee 
continuing  the  bank  of  a  river  so  as  to  overflow  his  neighbour's  ground ;  see, 
however,  Cro.  El.  403,  520,  where  the  case  of  Beswick  v.  Combden  is  dis- 
cussed ;  so,  a  devisee  shall  have  an  action  for  a  nuisance  commenced  in  the 
life  of  the  testator,  and  continued  afterwards  ;(e)  where,  however,  the  nui- 
sance arises  from  a  neglect  to  repair,  the  action  can  only  be  maintained 
against  the  occupier,  and  not  against  the  owner  of  the  fee,  who  is  not  in 
possession, (<!-)  unless  the  nuisance  complained  of  existed  before  the  tenancy 
commenced, (/i)  although  in  some  earlier  cases  this  point  was  not  settled. (j) 
In  Lynn  (Mayor,  &c.)  v.  Turner,(A:)  which  was  the  case  of  a  corporation 
bound  by  prescription  to  repair  a  creek,  it  did  not  appear  in  whose  posses- 
sion the  creek  was. 

442.  Where  the  party  against  whom  the  action  is  brought,  *was  pii^oooi 
not  the  original  creator  of  the  disturbance,  a  request  must  be  made  L  J 
to  remove  nuisance,  before  any  action  is  brought ;(/)  and  the  lessee  being 
held  liable  for  the  nuisance,  although  begun  in  his  lessor's  time,  the  request 
must  be  made  to  him.(m) 

443.  If  the  nuisance  be  to  the  damage  of  the  inheritance,  he  in  reversion 
shall  have  an  action  in   respect  thereof,  and  the   tenant  in  possession  in 

(x)  Mason  v.  Hill,  5  B.  &.  Ad.  l.t  (y)  Frankum  v.  Falmouth  (Earl\  6  C.  &  P.  529.» 

{z)  Bealey  y.  Shaw,  6  East,  208.  (a)  Mason  v.  Hill,  5  B.  &.  Ad.  2i.v 

(/()  Com.  Dig.  tit.  Action  on  the  Case  for  a  Nuisance, 
(c)  Moore  v.  Dame  Brown,  Dino-.  319.  (</)  Moor,  353. 

(e)  Some  v.  Barwish,  Cro.  Jac.  231.  (g)  Cheetham  v,  Hampson,  4  T.  R.  318. 

(//)  Rosewell  v.  Prior,  2  Salk.  460. 

f  r)  Holbach  v.  Warner,  Cro.  Jac.  665  ;  Star  v.  Rookesby,  1  Salk.  335.  See  also  Brent  v. 
Haddon,  Cro.  Jac.  555.  (A-)  Cowp.  86. 

{I)  Penruddock's  case,  5  Co.  lOL  cited  also  Rolfe  v.  Rolfe,  sup. 
(Ml)  Brent  v.  Haddon,  Cro.  Jac.  5o5. 

'Eng.Com.LawReps.xxvii.il.     "Id.  xxv.  526.     'Id.  xxvii.  11. 


274  crabb's  law  of  real   property. 

respect  of  the  damacfe  to  the  possession  ;  therefore,  where  in  case  by  a 
reversioner  against  the  defendant  for  stopping  a  rivulet,  whereby  the  plain- 
tiff's close  was  overflowed  and  his  trees  were  rotted  and  perished,  it  was 
held  to  be  no  defence  that  an  action  had  been  brought  asfainst  him  for  the 
same  trespass  by  a  lessee  of  the  premises  ;(n)  but  a  reversioner  must  state 
some  damage  to  the  reversion  ;  therefore,  where  a  plaintitf  declared  as  a 
reversioner  of  a  yard,  which  the  defendant  had  overhung,  so  that  the  water 
flowed  down  upon  the  yard,  and  thereby  it  was  injured  to  the  damage  of  the 
plaintiff,  but  without  stating  expressly  that  his  reversion  was  prejudiced, 
the  court  granted  a  rule  in  arrest  of  judgment,  on  the  ground  that  the  plain- 
tiff had  not  charged  that  the  reversion  was  prejudiced  ;(o)  so,  in  a  case  of 
building  a  roof  with  eaves,  so  as  to  discharge  water  on  adjoining  premises, 
it  was  held  to  be  an  injury  for  which  the  landlord  may  recover  as  reversion- 
er while  they  are  under  demise,  if  the  jury  think  there  is  damage  to  the 
reversion;(/))  so  in  Bower  v.  Hill,(y)  it  was  previously  held  that  a  reversion- 
er might  maintain  an  action  for  any  disturbance  which  in  its  present  form 
is  injurious  to  the  possession,  and  which  in  all  probability,  if  left  unaltered, 
would  continue  to  be  so  on  the  determination  of  the  particular  estate,  as 
r*qftQ"l  ''^'h^^^  ^  stream  was  choked  up  for  want  of  cleansing ;  but  *where 
L  J  the  disturbance  is  not  of  a  continuous  nature,  the  reversioner  cannot 
sue  ;(r)  where,  however,  the  disturbance  is  continued,  a  fresh  action  may 
be  maintained  from  time  to  time  by  the  person  holding  the  character  of 
tenant  in  possession  or  of  reversioner,  Penruddock's  case  ;(s)  Shadwell  v. 
Hutchinson  ;(/)  and  in  the  latter  case  it  was  said,  "  The  ground  upon  which 
a  reversioner  is  allowed  to  bring  his  action  for  obstructions,  apparently  per- 
manent, to  lights  and  other  easements  which  belong  to  the  premises,  is,  that 
if  acquiesced  in,  they  would  become  evidence  of  a  renunciation  and  aban- 
donment."    As  to  pleadings,  see  post,  under  that  title. 


SECTION  IX. 

RIGHT    TO    LIGHT    AND    AIR. 

§  444.  Light  and  air  are  two  important  subjects  of  easements,  which  from 
the  intimate  connexion  between  them  are  best  considered  together,  under 
the  following  heads,  namely, — 

1.  The  nature  and  extent  of  the  right. 

2.  How  claimed. 

3.  How  used. 

4.  How  lost. 

5.  Disturbance  of  the  right,  and  the  remedies. 

(n)  Bedingfield  v.  Onslow,  3  Lev.  209.     See  also  W.  Jo.  326 ;  Jesser  v.  Gifford,  Com. 
Dig-,  tit  Action  on  the  Case  lor  a  ^Nuisance,     (o)  Jackson  v.  Pesked,  1  M.  &.  S.  234. 
(p)  Tucker  v.  Newman,  1 1  Ad.  it  Ell.  40.>         («?)  1  Bing.  N.  C.  546fi 
(r)  Baxter  v.  Taylor.  4  B.  &  Ad.  72.«         (s)  5  Co.  101.         (/)  2  B.  &  Ad.  97.^ 

»Eng.  Com.  Law  Reps,  xsxix.  21.     ^id.  jxvii.  489.     'Id.  xxiv.  26.     "^Id.  xxii.  33. 


RIGHT    TO    LIGHT    AND    AIR.  275 

I.  Mature  nutK  Svtent  of  the  ^igiit  to  2tiQf*it  an^  Mix. 


§  445,  Right  to  Light  and  Air  on  one's  own 
Land. 
From  adjoining  Land. 
446.  Necessity  of  Light  and  Air. 
But  not  of  a  Prospect. 


§  446.  Except  by  Agreement. 

447.  Extent  of  the  Right. 

448.  Case  of  Windmills. 

449.  Custom  of  London. 


§  445.  The  right  to  light  and  air  depends  upoa  the  legal  maxim,  cujus  est 
solum,  ejus  est  usque  ad  coelum  et  ad  inferos,  *for  every  man  on  ^^,00  <-i 
his  own  land  has  a  risfht  to  all  the  light  and  air  that  will  come  to  ^  -^ 
him  ;  but  this  right  is  strictly  confined  to  that  which  falls  perpendicularly 
on  the  land,  &c. ;  the  reception  of  light  and  air  in  a  lateral  direction  by  the 
means  of  windows  in  a  house,  is  an  easement ;  for  although  a  man  may 
build  to  the  very  extremity  of  his  own  land,  yet  within  twenty  years  he 
acquires  no  right  to  light  and  air  from  the  adjoining  land,  and  it  is  compe- 
tent to  his  neighbour  to  obstruct  the  passage  of  the  light  and  air  throughhis 
windows,  by  building  against  them  on  his  own  land,  at  any  time  during 
twenty  years  after  their  construction,  and  thus  prevent  the  acquisition  of  the 
easement. (r<)(l)  But  if  the  light  be  suffered  to  pass  without  interruption 
during  that  period  to  the  building  so  erected,  the  law  implies  from  the  non- 
obstruction  of  the  light  for  that  length  of  time,  that  the  owner  of  the  adjoin- 
ing land  has  consented,  that  the  person  who  has  erected  the  building  upon 
his  land  shall  continue  to  enjoy  his  light  without  obstruction,  so  long  as  he 
continues  the  specific  mode  of  enjoyment  which  he  had  been  used  to  have 
during  that  period. (z;) 

446.  Light  and  air  being  necessary  to  the  right  enjoyment  of  a  dwelling, 
it  was  held  in  an  early  case  that  an  action  would  lie  for  obstructing 
them,('y)  unless  it  were  by  express  agreement  of  the  parties  ;(u)  sed  secus 
as  to  a  prospect,  which  is  merely  for  pleasure  ;(v)  and  so,  on  the  authority  of 
this  case  it  was  held,  in  Knowles  v.  Richardson,  that  building  up  a  wall 
which  merely  intercepted  the  prospect  without  stopping  out  the  light,  was 
not  actionable  ;(x')  so,  where  a  motion  was  made  for  an  injunction  to  restrain 
the  defendant  from  proceeding  with  a  certain  building,  which  would  inter- 
cept the  prospect  from  Gray's  Inn  Gardens,  and  it  was  alleged  that  the 
interposition  of  the  Court  was  desired,  not  on  the  ground  of  a  nuisance,  but  on 
along  enjoyment  of  right  to  this  prospect  by  the  society,  Lord  Hardwicke 
*refused  to  grant  an  injunction  before  answer,  adding,  "  I  know  no  r#qo--i 
rule  of  common  law,  which  says,  that  building  so  as  to  stop  ■-  -^ 
another's  prospect  is  a  nuisance  ;  was  that  the  case,  there  could  be  no  great 
towns. ...  It  depends  upon  a  particular  right,  and  then  the  party  must  first 
have  an  opportunity  to  answer.     There    may  be  such  a  right   as   this,  as 

(u)  Moore  V.  Rawson,  3  B.  &  C.  340.5  (r)  Aldred's  case,  9  Co.  53. 

(z)  1  Mod.  55  ;  S.  C,  2  Keb.  GIL 

(1)  And  no  action  lies  for  the  obstruction,  even  though  done  merely  for  the  purpose  of 
closing  the  window.     Mahan  v.  Brown,  13  Wend.  261. 

eEng.  Com.  Law  Reps.  x.  99. 


276  crabb's  law  of  real  property. 

in  the  case  of  the  Act  of  Parliament  touching  Lincohi's  Inn  ;  that  was  upon 
agreement  of  the  parties,  which  if  it  was  shewn  here,  it  would  be  differ- 
ent ;(y)  but  where  the  terms  of  a  lease  are  in  other  respects  complied  with, 
and  the  lease  is  silent  on  the  subject  of  any  particular  erections,  it  has  been 
held,  that  under  the  circumstances  it  was  not  competent  to  the  lessees  of 
certain  houses  to  object  to  the  erection  of  a  statue,  on  the  ground  that  it 
would  be  an  obstruction,  Squire  v.  Campbell  ;(^)  and  it  was  there  said,  "  It 
is  not,  as  is  said  in  one  case,  (see  1  Dick.  175,  and  16  Ves.  342,)  because  the 
value  of  property  may  be  lessened,  and  it  is  not,  as  is  said  in  another  case, 
(see  1  Dick.  175),  because  a  pleasant  jirospect  may  be  shut  out,  that  this 
Court  is  to  interfere  ;  it  must  be  an  injury  very  diflerent,  in  its  nature  and 
origin,  to  justify  such  an  interference. "(a) 

447.  The  right  to  the  use  of  light  may  be  acquired  not  only  for  the  con- 
venience of  a  dwelling,  but  also  for  the  purposes  of  trade  ;  therefore,  where 
a  building  had  been  used  for  a  long  time  as  a  malt-house,  it  was  held,  that 
no  erection  could  be  made  which  would  obstruct  the  admission  of  the  pro- 
per degree  of  light  for  the  purpose  of  making  malt  ;(6)  but  it  appears,  that 
the  use  of  an  open  space  of  ground  for  a  purpose  requiring  light  and  air,  as 
a  timber-yard  and  saw-pit,  for  twenty  years,  did  not  give  a  right  to  preclude 
the  owner  of  the  adjoining  ground  from  building  on  his  land  so  as  to  obstruct 
r*^ftfi"l  ^^^  ^^S^^  ^^^d  air  ;(c)  and  it  was  said,  "If  *such  a  plea  could  be  sus- 
L  -'  tained,  it  would  follow,  that  a  man  might  acquire  a  right  to  the  light 
and  air,  not  only  as  heretofore,  by  having  been  suffered  to  build  on  the  edge 
of  his  property,  and  suffered  for  a  certain  space  of  time  to  enjoy  that  build- 
ing without  interruption,  but  merely  by  reason  of  having  been  in  the  habit 
of  laying  a  few  boards  on  his  ground  to  dry.  Such  a  rule  would  be  very 
inconvenient,  and  very  unjust. "((A 

448.  In  one  of  the  early  cases  it  Avas  held,  that  where  a  house  was 
erected  so  high  that  the  wind  was  stopped  from  the  windmills,  the  house 
should  be  dejected,  or  at  least  so  much  of  it  as  occasioned  the  nuisance. (c) 

449.  By  the  custom  of  London,  a  man  might  rebuild  his  house  or  other 
edifice  upon  the  ancient  foundation  to  what  height  he  pleased,  though  thereby 
the  ancient  lights  of  the  adjoining  house  were  stopped,  if  there  Avere  no 
agreement  in  writing  to  the  contrary  ;(/)  but  not  any  other  erection  upon  a 
new  soil,  or  upon  any  other  foundation  ;("•)  as  to  the  rights  to  light  under 
the  Prescription  Act,  see  post,  §  452  ;  also  Dig.  P.  iii.  tit.  Prescription. 

(y)  Attorney-General  v.  Doughty,  2  Vez.  452. 

(2)  1  My.  &  Cr.  459.  (a)  Per  Lord  Cottinjrham,  C.  1  My.  &  Cr.  450. 

(b)  Martin  v.  Goble,  1  Campb.  322.         (c)  Roberts  v.^Marord,  1  Mood.  &,  Rob.  230. 

(d)  Per  Patteson,  J.,  Roberts  v.  IMacord,  1  Mood.  &  Rob.  230. 

(e)  Goodman  v.  Gore,  2  Roll.  Abr.  704,  705.  (/)  Com.  Dig.  tit,  London,  N.,  (5). 
(g)  lb.  See  also  Winstanley  v.  Lee,  2  Svvanst.  339. 


RIGHT     TO    LIGHT     AND    AIR.  277 

IT.  l^oijj  clnCmrt. 


§  450.  By  Prescription. 

In  the  Case  of  ancient  Windows 
451.  By  Consent. 


§4.52.  By  Leng;th  of  Enjoyment. 
453.  Acquiescence  by  Person  entitled  to' 
the  Inheritance. 


454.  By  License. 


§  450.  Ancient  lights  may  be  prescribed  for,  because  light  and  air  are 
things  necessar}'  ;(/t)  so,  in  Palmer  v.  Fletcher,(i)  *it  was  held,  that  ^#007-1 
a  stranger,  having  lands  adjoining  to  a  house  newly  erected,  may  L  J 
stop  the  lights,  for  the  building  of  a  man  on  his  land  cannot  hinder  his 
neighbour  from  doing  what  he  will  with  his  own  lands  ;(1)  but  other- 
wise, if  the  messuage  be  ancient,  so  that  he  has  gained  a  right  in  the  lights 
by  prescription  ;  and  in  Cross  v.  Lewis(/)  it  is  said,  "A  man  on  his  own 
land  may  erect  a  house  with  windows  looking  towards  his  neighbour's  pre- 
mises ;  at  first  they  may  be  obstructed,  but  if  no  interruption  is  offered,  he 
may  at  length  prescribe  for  them  as  ancient  windows,  and  claim  to  have 
them  free  from  obstruction,  as  in  Bland  v.  Moseley,  cited  in  Aldred's  case, 
(9  Co.  57)." (A;)  So,  in  Penwarden  v.  Ching(Z)  it  was  held,  that  a  window 
recently  erected  might  have  the  privilege  of  an  ancient  window  ;  and  it  is 
there  said,  "The  question  is  not  whether  the  window  is  strictly  what  is 
called  an  ancient  window,  but  whether  it  is  such  as  the  law  in  indulgence 
to  rights  has,  in  modern  times,  so  called,  and  to  which  the  defendant  has  a 
right,  for  this  is  the  substance  of  the  plea."(?7i) 

451.  A  right  to  light  and  air  is  not,  like  a  right  of  common,  to  be  enjoyed 
on  the  land  of  another,  and  therefore  is  not  properly  the  subject  of  grant ; 
it  is  acquired  hj  user,  and  after  a  time,  an  agreement  not  to  obstruct  the  light 
and  air  is  presumed  ;  but  this  is  not  by  way  of  grant,  for  the  right  to  insist 
on  their  non-obstruction  and  non-interruption  more  properly  arises  by  a 
covenant  which  the  law  implies,  not  to  interrupt  the  free  use  of  these 
elements,  (n) 

452.  The  enjoyment  of  lights  for  twenty  years,  without  any  obstruction 
from  the  party  entitled  to  object,  has  long  been  held  to  be  a  sufficient  foun- 
dation for  raising  the  ^presumption  of  an  agreement  not  to  obstruct  r-*qoo-i 
them, (2)  Darwin  v.  Upton,  cited  3  T.  R.  159,  and  ever  since  this  L  -■ 
decision  it  has  been  held,  that  in  the  absence  of  any  evidence  to  rebut  that 
presumption,  a  jury  should  be  directed  to  act  upon  it  ;(o)  and  since  the  2  & 

{h)  Aldred's  case,  9  Co.  58. 

(i)  1  Lev.  122 ;  S.  C,  1  Sid.  1G7.         (;  )  2  B.  &  C.  686  ;h  S.  C,  4  D.  &  R.  234. 

(/f)  Per  Holrovd,  J.,  lb.         (l)  Mood.  Sc  Malk.  400.         {m)  Per  Tindal,  C.  J.,  lb. 

(n)  Moore  v.  Rawson,  3  B.  &  C.  340.i 

(0)  Per  Bay  ley,  J.,  in  Cross  v.  Lewis,  2  B.  «$;:,  C.  639  .J 


(1)  Mahan  v.  Brown,  13  Wend.  261.     Thurston  v.  Hancock,  12  Mass.  220. 

(2)  Wright  V.  Freeman,  5  Har.  &  Johns.  477  ;  Tliurston  v.  Hancock,  12  Mass.  225. 
This  rule  is  doubted  as  to  its  application  to  city  lots  in  this  country.  3  Kent's  Corn.  446, 
n.  b.;  Hoy  v.  Sterret,  2  W.  331. 

bEng.  Com.  Law  Reps.  ix.  221.     ^Id.  x.  99.    Jid.  ix.  221. 


278  crabb's  law  of  real  property. 

3  W.  4,  c.  71,  s.  3,  (see  Dig.  P.  iii.  tit.  Prescription,)  an  absolute  right  to 
light  may  be  acquired  by  an  enjoyment  without  interruption  for  twenty 
years,  as  the  eighth  section  of  the  act,  providing  for  possession  during  par- 
ticular periods,  does  not  extend  to  lights  ;  therefore,  a  right  to  lights  may  be 
established  upon  an  enjoyment  for  nineteen  years  and  a  fraction,  provided 
the  action  be  brought  before  the  interruption  has  continued  for  the  full  period 
of  a  year.(/)) 

453.  But,  though  an  uninterrupted  possession  for  twenty  years  or  up- 
wards was  held,  before  the  Prescription  Act,  the  2  &  3  W.  4,  c.  71,  sufR- 
cient  to  presume  a  grant  or  agreement,  yet  the  rule  was,  and  still  is,  to  be 
taken  with  this  qualification,  that  the  possession  was  with  the  acquiescence 
of  the  person  entitled  to  the  inheritance ;  therefore,  the  tenant  for  life  has 
no  power  to  grant  any  such  right  for  a  longer  period  than  during  the  con- 
tinuance of  his  particular  estate  ;(</)  and  it  has  been  held,  that  the  acquies- 
cence of  lessees  or  tenants  for  life  in  the  enjoyment  of  lights  did  not  bind 
the  landlord  or  reversioner,  unless  they  had  knowledge  and  acquiesced  for 
twenty  years.  And  a  presumption  against  the  owner  of  lands  was  not  so 
easily  inferred  in  the  case  of  lights,  as  in  the  case  of  rights  of  way  or  of 
common,  where  the  tenant  suffered  an  immediate  injury;  therefore,  aa 
enjoyment  of  light  for  more  than  twenty  years,  during  the  occupation  of  the 
opposite  premises  by  a  tenant,  did  not  conclude  his  landlord,  who  was  igno- 

-.  rant  of  the  fact,  and  consequently  *will  not  preclude  a  succeeding 
L  J  tenant,  who  was  in  possession  under  such  landlord,  from  building 
up  against  such  encroaching  lights,  Daniel  v.  North  ;(r)  and  it  is  said,  in 
that  case,  "  The  foundation  of  presuming  a  grant  against  any  party  is,  that 
the  exercise  of  the  adverse  right,  on  which  such  presumption  is  founded,  was 
against  the  party  capable  of  making  the  grant,  and  that  cannot  be  presumed 
against  him,  unless  there  were  some  probable  means  of  his  knowing  what 
was  done  against  him  ;"(s)  so,  where  lights  had  been  enjoyed  for  more  than 
twenty  years  contiguous  to  land  which,  within  that  period,  had  been  glebe 
land,  but  was  conveyed  to  a  purchaser  under  the  55  G.  3,  c.  147,  it  was  held 
that  no  action  would  lie  against  such  purchases  for  building  so  as  to  obstruct 
the  lights,  inasmuch  as  the  rector,  who  was  only  tenant  for  hfe,  could  not 
grant  the  easement,  and  therefore  no  valid  grant  could  be  presumed. (/) 

454.  Whether  a  license  by  deed  is  necessary  to  create  a  right  to  have 
light  and  air  come  from  the  land  of  an  adjoining  owner,  does  not  appear  to 
be  settled,  Bridges  v.  Blanchard  ;(z/)  for  in  that  case  it  was  only  decided, 
that  a  license  simply  to  set  a  ladder  on  the  land  of  another  could  not  be 
construed  to  extend  by  implication  to  making  a  window  to  look  on  the 
premises  of  the  licensor. (?;) 

Cp)  Flight  V.  Thomas,  11  Ad.  &  Elh  688 ;"  S:  C,  3  Per.  &  D.  443 ;  5  Jur.  311. 
(7)  2  Saund.  175.  (r)  11  East,  3r2.  (s)  Per  Ellenborough,  C.  J.,  lb.' 

(0  Barker  v.  Richardson,  4  B.  &.  A.  57!).     See  also  R.  v.  Bliss,  7  Ad.  &,  Ell.  554.'" 
(u)  1  Ad.  &  El.  536 ;"  S.  C,  3  Nev.  &,  Man.  591 ;  Blanchard  v.  Bridges,  4  A.  &  E.  176." 
(v)  lb.     See  Winter  v.  Brockwell,  8  East,  308,  as  to  a  parol  license  to  erect  a  sky-light, 
and  further,  as  to  licenses,  infra,  §  513  et  seq. 

tEng.  Com.  Law  Reps,  xxxix.  200.      'Id.  vi.  523.    "^Id  xxxiv.  154.     '^Id.  xxviii.  143. 

old.  xxxi.  46. 


RIGHT    TO    LIGHT    AND     AIR. 


279 


^iii.  f^oU)  <nscTj. 


4  455.  Effect  of  Alterations. 
456.  Altering  Buildings. 
Martin  v.  Goble. 


§  456.  Garritt  v.  Sharp. 
457.  Effect  of  Consent. 

Blanchard  v.  Bridges. 


[*390] 


§  455.  No  alteration  in  the  mode  of  enjoying  light  and  air  will  be  admit- 
ted, which  tends  to  deprive  tlie  one  party  of  his  privilege,  or  to  impose  any 
additional  burthen  on  the  other  party ;  therefore,  if  an  ancient  window  be 
raised  and  enlarged,  the  owner  of  the  adjoining  land  cannot  lawfully  ob- 
struct the  passage  of  light  and  air  to  any  part  of  the  space  occupied  by  the 
ancient  window,  although  a  greater  portion  of  light  and  air  be  admitted 
through  the  unobstructed  part  of  the  enlarged  window  than  was  anciently 
enjoyed,  Chandler  v.  Thompson  ;(a?)  and  it  was  said  in  that  case,  "  The 
whole  of  the  space  occupied  by  the  old  Avindow  was  privileged,  and  it  was 
actionable  to  prevent  the  light  and  air  from  passing  through  this,  as  it  had 
formerly  done.  That  part  of  the  new  window  which  constituted  the  en- 
largement might  be  lawfully  obstructed  ;  but  the  plaintiff  was  entitled  to  the 
free  admission  of  light  and  air  through  the  remainder  of  the  window,  with- 
out reference  to  what  he  might  derive  from  other  sources."  (?/)  In  a  pre- 
vious case,{z)  it  had  been  held,  that  there  being  six  lights  in  an  old  house, 
in  the  new  there  should  be  the  same  number  of  lights,  of  the  same  dimen- 
sions and  in  the  same  places  ;  and  it  is  there  said,  «  They  cannot  alter  the 
same  to  the  prejudice  of  the  soil,  as  if  they  were  before  so  high  as  that  they 
could  not  look  out  of  them  into  the  yard,  they  shall  not  make  them  lower, 
and  the  like. (a)  So  in  Cotterell  v.  Grifiiths,(&)  it  was  held,  that  although 
the  plaintiff's  windows  were  darkened  *by  the  Winds  being  down,  r*gQj-| 
yet  the  defendant  having  by  his  act  rendered  them  still  darker,  the  L 
action  was  sustainable. 

456.  So,  in  Martin  v.  Goble,(c)  where  a  building  which  had  been  used 
as  a  malt-house  for  upwards  of  twenty  years  was  converted  into  a  dwelling- 
house,  it  was  held,  that  the  house  was  entitled  to  the  degree  of  light  neces- 
sary for  a  malt-house,  and  not  for  a  dweUing-house.  "The  converting  it 
from  one  to  the  other,  could  not  affect  the  rights  of  the  owners  of  the  adjoin- 
ing ground,  no  man  could,  by  any  act  of  his,  suddenly  impose  a  new  restric- 
tion on  his  neighbour." ((/) 

So,  in  Garritt  v.  Sharp,(e)  where  the  building  in  question  had  been  for  up- 
wards of  twenty  years  a  barn,  in  which  there  were  several  apertures 
through  which  light  and  air  passed,  and  the  plaintiff  turning  the  barn  into 
a  malt-house,  stopped  some  of  the  holes,  and  converted  others  into  lattice- 
windows,  after  which  the  defendant  erected  a  wall  which  prevented  the 
access  not  only  of  any  additional  light  which  might  have  been  obtained  by 
the  alteration,  but  also,  as  the  plaintiff  alleged,  of  that  quantity  which  had 

(x)  3  Campb.  80.  (;v)  Per  Le  Blanc,  J ,  lb. 

(s)  Cherrins-ton  v.  Abney,  2  Vern.  646.  (a)  Per  Curiam.  {h)  4  Esp.  G9. 

(c)  1  Campb.  322.  (d)  Per  M'Donald,  C.  B.,  lb.  (c)  3  Ad.  &  Ell.  3:>o.' 

'Eng.  Com,  Law  Reps.  xxx.  104. 


280  crabb's   law   of   real  property. 

been  obtained  before  the  alteration  ;  the  jury  found  for  the  plaintiff,  but  a 
new  trial  was  granted,  on  the  ground,  that  "  although  the  point  was  made, 
yet  the  jury  were  not  required  to  consider  whether  the  plaintiff  had  essen- 
tially varied  the  manner  in  which  the  light  had  been  enjoyed." 

457.   So,  in  Blanchard  v.  Bridges,(/)  where   the  owner  of  a  house 
enlarged   it  and  inserted  a  window  at  one  end  in  the  part  added,  and  at 
another  end  carried  out  the  side  walls,  between  which  two  windows  for- 
merly stood  in  a  straight  line,  five  feet,  converting  this  end  into  a  bow,  and 
-,  inserting  *two  bow-windows  in  the  same  direction,  but  not  in  the 
L         J  same  situation  as  the  two  former,  it  was  held,  that  whatever  privi- 
leges against  the  obstruction  of  light  the  two  windows  of  the  original  house 
possessed,  this  privilege  did  not  extend  to  the  three  new  windows  ;  and  in 
this  case  it  is  said,  "In  whatever  way  precisely  the  right  to  enjoy  the  unob- 
structed access  of  light  and  air  from  adjoining  land  may  be  acquired,  (a 
question  of  admitted  nicety,)  still  the  act  of  the  owner  of  such  land,  from 
which  the  right  flows,  must  have  reference  to  the  state  of  things  at  the  time 
when  it  is  supposed  to  have  taken  place  ;  and  as  the  act  of  the  one  owner 
is  inferred  from  the  enjoyment  of  the  other,  it  must  in  reason  be  measured 
by  that  enjoyment.     The  consent,  therefore,  cannot  fairly  be  extended  be- 
yond the  access  of  light  and  air  through  the  same  aperture  (or  one  of  the 
same  dimensions  or  in  the  same  position)  which  existed  at  the  lime  such 
consent  is  supposed  to  have  been  given.     It  appears  to  us,  that  justice  and 
convenience  both  require  this  limitation.     If  it  were  once  admitted,  that  a 
new  window  varying  in  size,  elevation,  or  position,  might  be  substituted  for 
an  old  one,  without  the  consent  of  the  owner  of  the  adjoining  land,  it  would 
be  necessary  to  submit  to  juries  questions  of  degree,  often  of  a  very  uncer- 
tain nature,  and  upon  very  unsatisfactory  evidence.     And  in  the  same  case, 
a  party  who  had  acquiesced  in  the  existence  of  a  window  of  a  given  size, 
elevation,  or  position,  because  it  was  feU  to  be  no  annoyance  to  him,  might 
be  thereby  concluded  as  to  some  other  window,  to  which  he  might  have  the 
greatest  objection,  and  to  which  he  never  would  have  assented,  if  it  had 
come  in  question  in  the  first  instance.     The  case  of  Chandler  v.  Thomp- 
son,(o-)  is  not  at  all  inconsistent  with  this  reasoning.     There  an  ancient 
window  had  been  enlarged  ;  the  original  aperture  remained,  and  that  case 
only  decided  that  that  aperture  remained  privileged  as  before  the  enlarge- 
ment.    We  do  not  forget  that  the  windows  in  the  present  case,  whatever 

,  -,  their  privilege  may  be,  do  not  *claim  it  as  ancient  windows  in  the 
L  -J  ordinary  way,  from  an  acquiescence  of  twenty  years  ;  but  this  cir- 
cumstance forms  no  ground  of  distinction  as  to  the  point  now  under  con- 
sideration. (A) 

(/)  4  Ad.  cS:,  Ell.  195 ;'  S.  C,  5  Nev.  &  Man.  567.'  {g)  See  ante,  §  455. 

(A)  Per  Pattoson,  J.,  Blanchard  v.  Bridges,  4  Ad.  &  Ell.  195 ;»  S.C,  5  Nev.  &  Man.  567. 

'Eng.  Com.  Law  Reps,  xxxi.  46.     'Id. 


RIGHT     TO     LIGHT     AND     AIR. 


281 


IV.  "P^D'O)   lOfjt. 


§  459.  Lost  by  Non-user. 
Moore  v.  Rawson. 
460.  What  amounts  to  Non-user. 


§  401.  By  altering   the  Mode  of  Enjoy- 
ment. 


I 


§  458.  There  are  two  ways  by  which  a  right  to  light  and  air  may  be  lost, 
namely,  by  non-user,  and  an  alteration  in  the  mode  of  enjoyment. 

459.  The  right  to  the  use  of  light  and  air,  which  a  party  has  appropriated 
to  himself,  may  be  lost  by  mere  non-user  for  a  less  period  than  twenty  years, 
unless  an  intention  of  resuming  a  right  within  a  reasonable  time  be  shewn, 
when  it  ceased  to  be  used;(l)  thus,  where  a  person  entitled  to  ancient 
lights  pulled  down  his  house,  and  erected  a  blank  wall  in  the  place  of  a 
wall  in  whicli  there  had  been  windows,  and  suffered  such  wall  to  remain 
blank  for  seventeen  years,  and  the  defendant  erected  a  building  against  it, 
when  the  plaintiff  opened  a  window  in  the  same  place,  where  there  had 
formerly  been  a  window  in  the  old  building,  it  was  held  in  an  action  for 
obstructing  this  new  light,  that  it  lay  upon  the  defendant  at  least  to  shew, 
that,  at  the  time  when  he  so  erected  the  blank  wall,  and  thus  apparently 
abandoned  the  windows  which  gave  light  and  air  to  the  house,  it  was  not  a 
perpetual  but  a  temporary  abandonment  of  the  enjoyment,  and  that  he 
intended  to  resume  the  enjoyment  of  those  advantages  within  a  reasonable 
period  of  time, (i) 

*460.  "  The  right  to  light  and  air, or  water,"  (it  is  further  said  in  that  p#oQ  <-| 
case, (A')  "is  acquired  by  enjoyment, and  will, as  it  seemstome, continue  L  "  -^ 
so  long  as  the  party  either  continues  that  enjoyment,  or  shews  an  intention  to 
continue  it.  In  this  case  the  former  owner  of  the  plaintiff's  premises  had 
acquired  a  right  to  the  enjoyment  of  the  light,  but  he  chose  to  relinquish 
that  enjoyment,  and  to  erect  a  blank  wall  instead  of  the  one  in  which  there 
were  formerly  windows.  At  that  time  he  ceased  to  enjoy  the  right  in  the 
mode  in  which  he  had  used  to  do,  and  his  right  ceased  with  it."(Z)  So,  it 
has  been  held  likewise,  "  If  a  man  pulls  down  a  house,  and  does  not  make 
any  use  of  the  land  for  two  or  three  years,  or  converts  it  into  tillage,  he 
may  be  taken  to  have  abandoned  all  intention  of  rebuilding  the  house,  and 
consequently  his  right  to  the  light  has  ceased.  But  if  he  builds  upon  the 
same  site,  and  places  windows  in  the  same  spot,  or  does  any  thing  to  show 
that  he  did  not  mean  to  convert  the  land  to  a  different  purpose,  then  his 
right  would  not  cease. "(?n) 

So,  it  has  been  previously  held,  that  completely  shutting  up  windows 
with  bricks  and  mortar  for  above  twenty  years  would  destroy  the  privi- 
lege ;(?i)  and  the  plaintiff,  by  having  opened  an  old  window  which  had 

(i)  Moore  v.  Rawson,  3  B.  &  C.  336  ;=  S.  C,  5  D.  &  R.  254.  (k)  Id. 

(/)  Per  Bayley,  J.,  lb.  (w)  Per  Littledale,  J.,  Id.  341. 

(/))  Lawrence  v.  Obee,  3  Camp.  514. 

(1)  Corning  v.  Gould,  16  Wend.  531. 
«Eng.  Com.  Law  Reps.  x.  99. 


282 


CRABBS  LAW  OF  REAL  PROPERTY. 


been  thus  blocked  up,  and  thus  brought  a  nuisance  upon  herself,  had  no 
right  of  action. (n) 

In  Garritt  v.  Sharp,(o)  it  was  held  that  a  party  might  so  alter  the  mode 
in  which  he  has  been  permitted  to  enjoy  this  kind  of  easement,  as  to  lose 
the  privilege  altogether  ;  but  as  to  the  effect  of  alterations  in  general,  see 
ante,  §  455  et  seq. 


[*395]    *v.  Bisturiiancc  of  tiic  Jiifsiit,  m\li  the  iiemctrics. 


§  463.  What  amounts  to  an  Obstruction. 

464.  Not  always  unlawful. 

465.  When  an  Obstruction  is  unlawful, 

466.  Other  Cases. 
Compton  V.  Richards. 

467.  Reviere  v.  Bower. 

468.  Coutts  V.  Boreham. 

469.  Swansborough  v.  Coventry. 

470.  Blanchard  v.  Bridges. 

471.  Remedies   relating  to   Light   and 

Air. 


§  471.  In  case  of  disturbing  Privacy. 

472.  Action  on  the  Case. 

473.  Parties  to  the  Action. 

474.  Action  against  Tenant  or  Assignee. 

475.  Injunction. 

476.  Cases  of  equitable  Jurisdiction, 
Winstanley  v.  Lee. 

477.  Ryder  v.  Bentham. 

478.  Sutton  v.  Ld.  Montfort. 

479.  Bedford  (Duke)  v.  British  Museum 

(Trustees.) 


§  462.  The  disturbance  of  this  right  is  by  obstructing  the  passage  of  the 
light  and  air,  which  may  be  considered,  first,  as  to  what  amounts  to  an 
obstruction  ;  next,  the  circumstances  under  which  the  obstruction  maj''  take 
place  ;  and,  lastly,  the  remedy. 

463.  In  order  to  constitute,  by  building,  an  illegal  obstruction  of  the 
plaintiff's  ancient  light,  it  is  not  necessary  to  show  a  total  privation  of 
light  ;  if  the  plaintiff  can  prove,  that  by  reason  of  the  obstruction,  ho 
cannot  enjoy  the  light  in  so  free  and  ample  a  manner  as  he  did  before 
it  will  be  sufficient  ;(p)  the  question  is,  whether,  in  consequence  of 
the  obstruction,  the  plaintiff  has  less  light  than  before,  to  so  considerable 
a  degree,  as  to  injure  the  plaintiff's  property  in  point  of  value  or  occupa- 
tion ;[q\  so,  where  one  party  has  the  enjoyment  of  light,  and  alterations  are 
made  in  the  adjoining  buildings,  it  must  ajjpear  that  the  privation  of  light  is 
such  as  to  prevent  him,  if  he  is  in  trade,  from  carrying  on  his  business  as 
beneficially  as  he  had  previously  done.(r) 

r*Qqp-i  *464.  Every  interference  with  the  light  and  air  that  may  be 
L  -^  enjoyed  by  the  owner  of  an  adjoining  house  is  not  unlawful ;  the 
opening  a  window,  whereby  a  person's  privacy  is  disturbed,  is  not  action- 
able ;(s)  so,  building  a  wall,  or  otherwise  obstructing  a  prospect,  without 
obstructing  the  light,  is  not  actionable. (i) 

(n)  Lawrence  v.  Obee,  3  Campb.  514. 

(0)  3  Ad.  &  El.  325  ;f  S.  C,  4  Nev.  &  Man.  834.       (/))  Cotterell  v.  Griffiths,  4  Esp.  69. 
(7)  Pringle  v.  Wernliam,  7  C.  &  P.  377  ;?  Wells  v.  Ody,  Id.  410. 

(r)  Back  v.  Stacey,  2  C.  &  P.  465  ;h  S.  P.,  Parker  v.  Smell,  5  C.  &  P.  438  ;>  Pringle  v. 
Wrcnham,  sup. ;  Wells  v.  Ody,  sup. 

(s)  Cotterell  v.  Griffiths,  4  Esp.  69  ;  Chandler  v.  Thompson,  lb. 
(/)  Knowlcs  v.  Richardson,  1  Mod.  55. 

'Eng.  Cora.  Law  Reps.  xxx.  104.    eld.  xxxii.  548.      bid.  xii.  218.     'Id.  xxiv.  401. 


RIGHT    TO    LIGHT    AND     AIR.  283 

465.  On  the  principle  that  a  man  cannot  derogate  from  his  own  grant,  it 
is  settled,  that  where  the  same  person  possesses  a  house,  having  the  actual 
enjoyment  of  certain  lights,  and  also  possesses  the  adjoining  land,  and  sells 
the  house  to  one,  and  the  land  to  another,  yet  although  the  messuage  be 
new,  yet  no  person  claiming  under  the  vendor,  any  more  than  the  vendor 
himself,  can  build  on  the  adjoining  land,  or  put  piles  of  timber  so  as  to 
obstruct  the  light  ;[i()  and  whether  the  land  was  sold  before  the  house  or 
afterwards,  it  was  said  that  it  made  no  difference  ;(?<)  and  it  is  not  neces- 
sary to  state,  in  any  action,  that  the  house  is  ancient,  "  For  if  a  man  should 
build  a  house  on  his  own  ground,  and  then  grant  the  house  to  A.,  and  grant 
certain  land  adjoining  to  B.,  B.  could  not  build  to  the  stopping  of  its  lights 
in  that  case  ;"(^0  so,  an  action  will  lie  in  such  case,  either  against  the  lessor 
or  the  lessee.(3/)(l) 

466.  Upon  the  same  principle,  when  several  adjoining  portions  of  land, 
on  which  the  building  of  houses  had  been  commenced,  were  sold  by  auction, 
and  by  the  conditions  were  to  be  finished  according  to  a  particular  plan,  it 
was  held,  that  a  purchaser  of  one  of  the  lots  could  not,  by  erecting  an 
additional  building  at  the  back  of  his  house,  obstruct  the  light  from  the 
windows  of  another  purchaser,  who  had  built  his  house  according  to  the 
plan  ;[z)  for  it  *was  said,  "  The  purchase  must  be  taken  to  have  p^og^-i 
been  subjected  to  certain  conditions  at  the  time  of  sale,  and  as  these  l 
unfinished  houses  were  so  far  buih  as  that  the  openings,  which  were 
intended  to  be  supplied  with  windows,  were  sufficiently  visible  as  they 
then  stood,  we  must  recognise  an  implied  condition  that  nothing  would 
afterwards  be  done  by  which  those  windows  might  be  obstructed,  and  the 
purchasers  must  have  taken  subject  to  what  then  appeared. "(a) 

467.  So,  where  the  owner  of  a  house  divided  it  into  two  tenements,  and 
demised  one  of  them  to  the  defendant,  retaining  the  other  in  his  own  occu- 
pation, it  was  held,  in  an  action  against  the  defendant  for  obstructing  the 
plaintiff's  lights,  that  the  action  was  maintainable  against  a  person  holding 
as  tenant,  for  an  obstruction  to  a  window  existing  in  the  landlord's  house  at 
the  time  of  the  demise,  although  of  recent  construction,  and  although  there 
was  no  stipulation  against  the  obstruction. (6) 

(m)  Palmer  v.  Fletcher,  1  Lev.  122 ;  S.  C,  1  Sid.  167 ;  1  Keb.  553. 

{X)  Per  Hale  C.  J.,  Cox  v,  Matthews,  1  Vent.  237.  239. 

(y)  Roscwell  V.  Prior,  6  Mod.  116.  {z)  Compton  v.  Richards,  1  Price,  27. 

(a)  Per  Thompson,  C.  B.,  Compton  v.  Richards,  1  Price,  27. 

(6)  Rivere  v.  Bower,  1  Ry.  &.  M.  24.P 


(1)  Story  V.Odin,  12  Mass.  157,  S.  P.  There  is  an  implication  of  a  grant  of  way  from 
sale,  according-  to  a  plan  on  which  ways  are  laid  out,  necessary  or  useful  for  the  purposes 
of  the  land.  Sclden  v.  Williams,  9  W.  13.  The  same  principle  is  applied  in  case  of  a 
license  accompanied  with  costly  expenditures.  Lefevre  v.  Lefevre,  4  S.  &  R.  241. 
Rerick  v.  Kern,  14  S.  &  R.  267.  But  whether  a  party  can  reserve  such  a  right  by 
implication,  thus  impairing  his  own  grant,  qua-re.  In  Manning  v.  Smith,  6  Conn.  289, 
where  it  was  held,  a  purchase  of  land  having  merged  an  easement  in  an  artificial  water, 
course,  on  the  laud  of  the  purchaser,  it  did  not  arise  by  implication  on  a  re-conveyance  : 
it  was  said,  not  belonging  naturally  or  necessarily  to  the  land  conveyed,  it  could  not  pass 
as  appurtenant,  and  the  court  would  not  enlarge  the  terras  of  the  grant,  when  the  party 
might  have  secured  himself  by  proper  convenants. 

rEng.  Com.  Law  Reps.  xxi.  373. 


284  crabb's    law    of    real    property. 

468.  So,  where  the  owner  of  two  adjoining  houses  granted  a  lease  of  one 
of  them  to  B.,  and  afterwards  leased  the  other  to  C,  there  then  existing  in 
it  certain  windows,  after  which  B.  accepted  a  new  lease  of  his  house,  it  was 
held,  that  B.  could  not  alter  his  tenement  so  as  to  obstruct  the  windows 
existing  in  C.'s  house  at  the  time  of  his  lease,  although  the  windows  Avere 
not  twenty  years  old  at  the  time  of  the  alteration. (c) 

409.  So,  where  the  plaintiff  purchased  a  house  of  A.,  and  the  defendant 
at  the  same  time  purchased  the  adjoining  land,  upon  Avhich  a  building  one 
story  high  had  formerly  stood,  although  in  the  conveyance  to  the  plaintiff 
his  house  was  described  as  bounded  by  building-ground  belonging  to  the 
^  ^„  -,  defendant,  it  was  held,  nevertheless,  that  the  defendant  *was  not 
L  -J  entitled  to  build  to  a  greater  height  than  one  story,  if  by  so  doing  he 
obstructed  the  upper  windows  of  the  plaintiff's  house  ;[d\  and  it  was  said, 
«  It  is  well  established  by  the  decided  cases,  that  where  the  same  person 
possesses  a  house  having  the  actual  use  and  enjoyment  of  certain  lights,  and 
also  possesses  the  adjoining  land,  and  sells  the  house  to  another  person, 
although  the  lights  be  new,  he  cannot,  nor  can  any  one  who  claims  under 
him,  build  upon  the  adjoining  land,  so  as  to  obstruct  or  interrupt  the  enjoy- 
ment of  those  lights.  The  sales  to  the  plaintiff  and  defendant  being  sales 
by  the  same  vendor,  and  taking  place  at  one  and  the  same  time,  we  think 
the  rights  of  the  parties  are  brought  within  the  application  of  the  general 
rule  of  law."(f) 

470.  In  Blanchard  v.  Bridges(y)  it  was  held,  that  no  license  of  covenant 
from  A.,  the  owner  of  the  adjoining  land,  to  put  out  or  not  to  obstruct  the 
windows  in  the  house  of  B.,  is  to  be  inferred  from  the  circumstance  of  A.'s 
being  a  party  to  the  deed  by  which  the  house  with  the  windows  in  it  was 
conveyed  to  B.,  and  by  which  deed  A.  conveyed  part  of  the  adjoining  land 
to  B.,  or  from  the  circumstance  of  A.'s  witnessing,  without  objection,  the 
progress  of  the  building  ;  so,  likewise,  Avhere  A.,  in  licensing  B.  to  build  to 
the  extremity  of  B.'s  ground,  adjoining  that  of  A.,  expressly  reserved  to 
himself  the  right  of  building  to  the  extremity  of  his  own  ground,  when  he 
should  think  proper  so  to  do,  it  Avas  held,  that  A.  might,  at  any  time  within 
twenty  years,  build  to  the  extremity  of  his  own  land,  though  he  thereby 
rendered  the  house  of  B.  dark,  damp,  and  unheaUhy.(/)  If  a  party  who 
has  neglected  to  secure  to  himself  the  unobstructed  enjoyment  of  light  and 
air  to  a  new  window,  by  previous  express  hcense  or  covenant,  upon  any 
thing  short  of  twenty  years'  acquiescence,  the  onus  lies  upon  him  to  produce 
such  evidence  clearly  and  conclusively  to  the  inference  of  a  license  or  cove- 
nant. (/) 

r^Qoni  *471.  The  injuries  relating  to  the  enjoyment  of  light  and  air  are 
L  -'  either  such  as  arise  from  a  person's  putting  out  windows  to  the  pre- 
judice of  his  neighbour's  privacy,  or,  which  is  more  commonly  the  case,  by 
interrupting  others  in  the  enjoyment  of  that  light  and  air  to  which  they  are 

(c)  Coutts  V.  Gorham,  1  Mood.  &  Malk.  396.1 

(d)  Swansborough  v.  Coventry,  9  Bing.  305  r  S.  C,  2  M.  &  Sc.  369. 

(e)  Per  Tindal,  C.  J.,  lb.  (/)  4  Ad.  &  Ell.  195  ;'  S.  C,  5  Nev.  &  Man.  567. 

■iEng.  Com.  Law  Reps.  xxii.  338.    "-Id.  xxiii.  236.    ^id.  xxxi.  46. 


*  RIGHTTOLIGHTANDAIR.  285 

entitled  ;  in  the  first  of  these  cases,  where  a  party's  privacy  is  disturbed  by 
his  neighbour  throwing  out  a  window  to  overlook  his  premises,  there  appears 
to  be  no  other  remedy  than  to  build  on  the  adjoining  land  opposite  the  offen- 
sive window,  Chandler  v.  Thompson  ;(»•)  and  it  is  there  said,  "  Although 
an  action  for  opening  a  window  to  disturb  the  plaintiff's  privacy  was  to  be 
read  of  in  the  books,  I  never  knew  such  an  action  maintained  ;  and  when  I 
was  in  the  Common  Pleas,  I  heard  it  laid  down  by  Lord  C.  J.  Eyre,  that 
such  an  action  did  not  lie. "(A) 

472.  In  the  latter  case  above  mentioned,  when  a  party  has  acquired  a  right 
to  the  use  of  light,  an  action  on  the  case  lies  for  obstructing  it ;(?')  and  the 
like  remedy  lies  for  rendering  the  air  impure,  as  by  the  smell  of  hogs,(t) 
and  in  this  latter  case  the  right  of  action  lies  not  only  for  the  disturbance  of 
an  easement,  but  also  for  an  injury  to  the  common  law  rights  of  property. (A;) 

But  every  interference  with  the  full  enjoyment  of  an  easement  will  not 
amount  to  a  disturbance  so  as  to  sustain  an  action  ;  it  must  be  some  sensible 
abridgment  of  the  enjoyment ;  it  is  not  sufficient  that  a  "ray  or  two  of  light  is 
obstructed. (/) 

473.  An  action  may  be  maintained  by  a  reversioner  for  the  obstruction 
of  lights,  for  if  he  were  prevented  from  suing  for  such  an  injury  during  the 
continuance  of  the  particular  estate,  he  might  have  great  difficulty  in  prov- 
ing his  right  when  he  came  into  possession  ;(m)  and  the  ground  r-^jf.r.-< 
upon  *which  a  reversioner  is  allowed  to  bring  his  action  for  obstruc-  L  -> 
tions,  apparently  permanent,  to  lights  and  other  easements  which  belong  to 
the  premises,  is,  that,  if  acquiesced  in,  they  would  become  evidence  of  re- 
nunciation and  abandonment  ;(n)  so,  if  the  erection  which  caused  the  obstruc- 
tion in  the  first  instance  was  an  injur}'"  to  the  reversion,  on  any  ground  on 
which  it  can  be  put,  the  continuance  was  held  necessarilj''  to  be  so  likewise. 
The  continuance  of  the  obstruction  would  in  fact  render  the  proof  of  title 
more  difficult  at  a  future  time,  notwithstanding  the  former  recovery  ;(o)  and 
in  Jesser  v.  Gifrord,(7;)  which  was  an  action  by  a  reversioner  for  obstructing 
lights,  it  was  held,  that  the  tenant  might  bring  the  action  in  respect  of  the 
injury  to  his  possession,  and  the  reversioner  in  respect  of  his  reversion,  see 
further,  ante,  §  443. 

474.  The  owner  of  the  inheritance  may  bring  an  action  against  the  tenant 
for  a  nuisance  in  obstructing  lights  and  breaking  his  wall, (7)  and  the  action 
may  be  brought  not  only  against  the  party  who  erected  the  nuisance,  but 
also  against  his  lessee  or  assignee  for  continuing  it ;  therefore,  where  a  les- 
see for  years  of  a  piece  of  ground  adjoining  to  an  ancient  messuage  with 
ancient  lights,  whereof  the  plaintiff^  was  possessed  for  years,  erected  a  house 

(g)  3  Campb.  82.  (A)  Per  Le  Blanc,  J.,  lb. 

(i)  Aldred's  case,  9  Co.  59  a.  (A-)  Bliss  v.  Hall,  6  Scott,  500. 

(l)  Cotterell  v.  Griffiths,  4  Esp.  69.     See  further,  ante,  §  462. 

(m)  Schadwell  v.  Hutchinson,  1  Mood.  &  Malk.  300.' 

(71)  Bower  v.  Hill,  1  Bing.  N.  C.  555." 

(0)  Schadwell  v.  Hutchinson,  2  B.  &  Ad.  97.''  (  p)  4  Burr.  2141. 

iq)  Toralinson  v.  Brown,  Say.  215  ;  S.  C,  cited  2  Burr.  2142. 

'Eng.  Com.  Law  Reps.  xxii.  33.     "Id.  xxvii.  489.     'Id.  xxii.  33. 
November,  1846 19 


286  crabb's   law  of   real  property. 

thereupon,  whereby  the  plaintiff's  Hghts  were  stopped,  for  which  the  plain- 
tiff brought  a  former  action  and  recovered  damages,  after  which  the  defen- 
4ant  granted  over  the  ground,  with  the  nuisance,  to  another,  it  was  held,  that 
an  action  lay  for  the  continuance,  and  might  be  brought  against  either  ;(r)  but 
he  who  does  the  first  wrong  shall  be  answerable  in  damages  ;(r)  and  though 
the  action  lies  against  either,  yet  there  shall  be  one  satisfaction  ;(r)  and  an 
action  will  lie  not  only  against  the  principal,  but  also  against  the  managing 
r»4.m"l  ^^^"^^  ^^^°  ^superintends  the  erection  of  any  nuisance  ;  therefore,  in 
L  -■  an  action  on  the  case  for  obstructing  the  plaintiff's  lights,  it  was  held 
that  a  clerk  who  superintended  the  erection  of  the  building  by  which  they 
were  darkened,  and  who  alone  directed  the  workmen,  might  be  joined  as  a 
co-defendant  with  the  original  contractor;  Wilson  v.  Peto  and  Hunter,(s^ 
where  it  is  said,  "  In  cases  of  that  description,  the  action  must  be  brought 
either  against  the  hand  committing  the  injury,  or  against  the  owner  for  whom 
the  act  was  done ;"  but  intermediate  and  subordinate  persons  are  expressly 
exempted  from  responsibility  by  this  case. 

475.  A  Court  of  equity  will  grant  an  injunction  to  restrain  any  erection 
likely  to  darken  or  obstruct  the  ancient  lights  of  any  house  ;(/)  and  it  will 
be  granted  on  affidavit  of  notice,  but  not  on  a  motion  in  support  of  a  particu- 
lar right  to  a  prospect  ;(u'\  and  the  right  to  lights,  as  the  ground  for  an 
injunction  to  stop  the  erection  of  buildings,  must  be  founded  on  prescrip- 
tion, or  else  on  some  agreement  or  a  reasonable  presumption  of  one  ;(r)  so, 
the  foundation  of  the  jurisdiction  to  interfere  by  injunction  must  be  such 
material  injury  to  the  comfort  of  those  who  dwell  in  the  neighbouring 
house,  as  to  require  the  application  of  a  power  to  prevent,  as  well  as  to 
remedy  an  evil  for  which  damages,  more  or  less,  would  be  given  in  an 
action  at  ]aw.[x)  "  The  position  of  the  building,  whether  opposite,  at  right 
angles,  or  oblique,  is  not  material.  The  question  is,  whether  the  effect  is 
such  an  obstruction  as  the  party  has  no  right  to  erect,  and  cannot  erect 
without  those  mischievous  consequences,  which  upon  equitable  principles 
should  be  not  only  compensated  by  damages,  but  prevented  by  injunction. 
r*4n9l  ^  i"6peat  the  observation  of  Lord  Hardwicke,(2/)  that  a  *diminution 
L  -'of  the  value  of  the  premises  is  not  a  ground  ;  and  there  is  as  little 
doubt  that  this  Court  Avill  not  interpose  upon  every  degree  of  darkening 
ancient  hghts. "(s) 

476.  Courts  of  equity  will  restrain  the  erection  of  buildings  which  would 
cause  irreparable  injury,  as  loss  of  health,  loss  of  trade,  or  destruction  of 
the  means  of  existence,  without  waiting  the  slow  process  of  establishing  the 
legal  right,  when  delay  itself  would  be  a  wrong ;  but  the  plaintiff  is  bound 
to  shew  not  only  a  legal  right  to  the  enjoyment  of  the  ancient  lights,  but 

(r)  Rosewell  v.  Prior,  6  I\Iod.  116  ;  12  Mod.  635  ;  S.  C,  2  Sulk.  459  ;  S.  C,  Comb.  481 ; 
S.  C,  Carth.  454  ;  S.  C,  Holt,  500 ;  S.  C,  1  Ld.  Raym.  392. 

(s)  6  J.  B.  Moore,  47,^  recog:nizing  Stone  v.  Cartwright,  6  T.  R.  411, 

it)  Back  V.  Stacey,  2  Russ.  121.  (u)  Attorney-General  v.  Doughty,  2  Vez.  453, 

(«)  Morris  v.  Lessees  of  Lord  Berkeley,  2  Vez.  452. 

(x)  Attorney-General  v.  Nichol,  16  Vez.  338.  (»/)  1  Dick.  164. 

(z)  Per  Eldon,  C,  Attorney-General  v,  Nichol,  16  Vez,  338. 

wEng,  Com.  Law  Reps.  xvii.  13. 


RIGHT     TO     LIGHT     AND     AIR.  287 

that,  if  the  defendant  is  permitted  to  proceed,  such  an  injury  will  ensue  as 
will  warrant  the  Court  in  interposing  ;(a)  and  the  Court  will  not  interpose 
on  certificate  of  a  bill  filed  before  answer,  unless  the  injury  is  of  a  nature  so 
pressing  as  not  to  admit  of  delay. (a) 

477.  In  Ryder  v.  Bentham,(Z>)  an  injunction  against  erecting  certain 
blinds,  so  put  up  as  to  obstruct  plaintifl^'s  lights,  was  granted,  until  trial  of 
the  right  at  law  ;  but  the  Court  would  not,  on  motion,  make  an  order  to  pull 
down  what  had  been  already  erected;  so,  in  Attorney-General  v.  Nichol,(c) 
the  Court  granted,  under  the  circumstances,  an  injunction  to  restrain  the 
obstruction  of  ancient  lights  before  appearance,  and  without  notice,  on  an 
affidavit  filed,  even  although  plaintiff  had  previously  commenced  an  action 
at  law;  see  also  S.  C,  16Ves.  338,  where  this  injunction  was  also  dis- 
solved, on  defendant's  undertaking  to  remove  the  obstruction  if  the  verdict 
should  be  against  him  ;  see  also  Chalk  v.  Wyatt.(f/) 

478.  An  injunction  was  granted  to  prevent  the  stopping  of  ancient  lights 
against  the  lessee  of  an  ecclesiastical  corporation,  subject  to  the  plaintiffs' 
establishing  their  right  to  an  *easement  in  an  action  ;(e)  and  upon  a  p^^Qoi 
motion  to  dissolve  the  injunction,  it  was  said,  "As  far  as  the  model  L  -^ 
gives  me  any  information  upon  the  subject,  and  so  far  as  I  can  form  a  con- 
ception from  the  dimensions  of  the  intended  buildings  as  they  have  been 
stated  in  the  affidavits,  I  entertain  no  doubt  whatever  that  the  comfort  of 
those  who  live  in  the  houses  now  occupied  by  Mr.  Tutton  and  Miss  Jelfe 
would  be  most  materially  affected.  I  have,  therefore,  a  case  before  me,  in 
which,  according  to  my  own  opinion,  the  building,  if  completed,  would  be 
a  nuisance,  and  in  which  it  is  not  by  any  means  clear  that  the  Dean  and 
Chapter  of  Westminster  would  have  a  right  to  erect  the  building  proposed, 
and  in  which  it  appears  that  Lady  Montfort  may  not  have  the  right,  though 
the  Dean  and  Chapter  may  have  it.  I  think,  therefore  that  the  injunction 
must  be  continued,  but  the  matter  must  be  tried. "(/) 

479.  Where  land  is  conveyed  in  fee,  by  deed  of  feoffment,  subject  to  a 
perpetual  ground-rent,  and  the  feoffee  covenants  for  himself,  his  heirs,  ad- 
ministrators, and  assigns,  with  the  feoffor,  the  owner  of  the  adjoining  lands, 
his  heirs,  executors,  administrators,  and  assigns,  not  to  use  the  land  in  a 
particular  manner,  with  the  view  to  the  more  ample  enjoyment  by  the 
feoffor  of  such  adjoining  lands,  and  the  subsequent  acts  of  the  feoffor,  or 
those  claiming  under  him,  have  so  altered  the  character  and  condition  of 
the  adjoining  lands,  that,  with  reference  to  the  land  conveyed,  the  restric- 
tion in  the  covenant  ceases  to  bo  applicable,  according  to  the  intent  and 
spirit  of  the  contract,  a  Court  of  equity  will  not  interpose  to  enforce  the 
covenant  by  granting  an  injunction  to  restrain  the  erection  of  additional 
buildings,  but  will  leave  the  parties  to  their  remedy  (if  they  have  any)  at 
law.(^) 

(a)  Winstanley  v.  Lee,  2  Swanst.  335.     (b)  1  Vez.  543.     (c)  3  Mer.  C87.      (J)  Id.  688. 
(e)  Sutton  V.  Lord  Montfort,  4  Sini.  559,  recognizing  Attorney-General  v.  Nichol,  IG 
Ves.  338. 

(/)  Per  Sir  L.  Shadwell,  V.  C.  ib. 

(^)  Bedford  (Duke)  v.  British  Museum  (Trustees,)  2  My.  &  K.  552. 


288 


CRABBS  LAW  OF  REAL  PROPERTY. 


[*404] 


*SECTION  X. 


RIGHT    TO    PEWS    AND    OTHER    EASEMENTS. 


§  480.  There  are  several  rights,  which  have  been  admitted  either  as 
prescriptive  rights,  or  such  as  may  be  claimed  by  a  grant,  express  or 
implied,  which,  as  they  are  to  be  enjoyed  on  the  land  of  another,  have  been 
classed  among  the  number  of  easements  ;  of  these,  the  right  to  a  pew  or 
seat  in  the  church  deserves  the  first  consideration. 


I.  ^UijiUt  to  ^t\3is. 


§  481.  No  property  in  pews. 

May  be  claimed  by  Prescription  or  a 

Faculty. 
Disposition  of  the  Seats. 
Right  of  the  Churchwardens. 
Duty  of  the  Churchwardens. 
Particular  Rights. 
Prescriptive  Right. 
Appendant  to  a  house,  not  to  Land. 
Pew   cannot    be    severed    from    tlie 

House. 
Prescriptive. 
Apportionablc. 
486.  Priority  of  a  Seat  to  be  prescribed  for. 


482. 
483, 

484 


485. 


§  487.  Prescription,  how  to  be  proved. 
Evidence  from  Reparation. 

490.  FacuUJ^ 
Different  Kinds. 

491.  Faculty  revocable. 

492.  Faculty  may  be  presumed. 

493.  Possessory  Right  to  a  Pew. 

494.  Wliat   is   a    Disturbance,    and    its 

Etfect. 
Right  triable  at  Common  Law. 

495.  No    Suit    in    Spiritual   Court    when 

Prescription  is  in  question. 

496.  When  the  Ordinary  has  Cognisance. 

497.  Perturbation  of  Seat. 


Under  this  head  may  be  considered,  first,  how  claimed  ;  and,  in  the  next 
place,  disturbance  of  the  right,  and  the  remedies. 

1.  How  cluimed. 


§  481.  At  common  law  there  is  no  property  in  pews,  they  are  erected  for 
the  use  of  the  parishioners.  The  ordinary  may  by  a  faculty  grant  a  pew 
-.  to  a  particular  person  while  he  resides  *in  the  parish,  or  there  may 
L  -^  be  a  prescription  Avhich  presupposes  a  faculty;  but  as  to  personal 
property  in  a  pew,  the  law  knows  no  such  thing. (/t)  Every  man  who 
settles  as  a  householder  has  a  right  to  call  on  the  parish  for%a  convenient 
seat.(i) 

Although  of  common  right  the  soil  and  freehold  of  the  church  is  in  the 
parson, (A:)  yet  the  use  of  the  body  of  the  church  and  its  repairs  belong  to  the 
parishioners,  and  the  disposing  of  the  seats  therein  belongs  to  the  ordinarj^, 
and  therefore  no  one  can  claim  a  peculiar  seat  without  special  reason. (A-) 

The  parson,  or  rector  impropriate,  is  entitled  to  the  chief  seat  in  the 
chancel ;(/)  but  a  grant  of  part  of  the  chancel  by  a  lay  impropriator  has  been 
held  not  good.(m)  "  If  this  grant  were  good,  it  would  take  the  chancel  out 
of  the  jurisdiction  of  the  ordinary." (n) 


(h)  3  Phill.  15.  (i)  1  Consist.  194. 

(A-)  Boothby  v.  Daily,  Hob.  69. 

(m)  Clifford  v.  Wicks,  1  B.  &  Ad.  498. 


(Z)  Hall  V.  Ellis,  Noy,  153. 
(n)  Per  Bayley,  J.,  lb. 


RIGHT     TO     PEWS,    ETC.  289 

482.  Parishioners  are  not  at  liberty  to  chose  what  seats  they  like  ;  the 
distribution  of  seats  among  them  rests  in  the  discretion  of  the  ordinary,  who, 
it  is  said,  may  place  and  displace  whomsoever  he  pleases. (o)  This  discre- 
tion is  commonly  exercised  by  the  churchwardens,  who  are  the  officers  of 
the  ordinary,  as  well  as  those  of  the  parish. (p)  To  exclude  the  ordinary 
from  his  jurisdiction,  it  was  necessary,  before  the  Prescription  Act,  2  &  3 
W.  4,  c.  71,  not  merely  that  a  possession  should  be  shown  for  many  years, 
but  that  the  pew  should  haA^e  been  built  and  repaired  time  out  of  mind.((/) 

483.  By  custom,  the  church  wardens  may  have  the  ordering  of  the  seats, 
as  in  London, (r)  and  such  a  custom  will  be  *good,  and  a  prohibition  r-^ir^f.-, 
will  lie  if  the  ordinary  interpose  ;(s)  and  the  churchwardens  must  L  J 
show  some  particular  reason  why  they  are  to  order  the  pews  exclusively  of 
the  ordinary,  for  a  general  allegation,  that  the  parishioners  have  used  to 
repair  and  build  all  the  scats  in  the  church,  and  by  reason  thereof  the 
churchwardens  have  used  to  order  and  dispose  the  seats,  is  not  sufficient  to 
take  away  the  ordinary's  power  in  disposing  and  ordering  the  seats,  because 
this  is  no  more  than  the  parishioners  are  bound  to  do  of  common  right,  to 
wit,  building  and  repairing  the  seats,  for  which  they  have  the  easement 
and  convenience  of  sitting  in  them,(/) 

The  authority  of  the  churchwardens  must  be  exercised  justly  and  dis- 
creetly, or  they  may  be  corrected  by  the  ordinary. (z/)  They  should  place 
the  parishioners  according  to  their  station  ;(a.")  and  they  cannot  exercise  this 
right  in  opposition  to  every  legal  and  equitable  claim. (?/) 

484.  A  right  to  a  pew  in  a  church  is  an  easement, (~)  and  a  person  claim- 
ing such  right  must  show  either  a  faculty  or  a  prescri2:)tion.(a)  It  must  be 
claimed  as  an  appurtenant  to  a  messuage  within  the  parish,  and  the  occu- 
pancy of  it  must  pass  with  the  house,  and  the  individuals  cannot,  by  con- 
tract between  themselves,  defeat  the  general  right  of  the  parish  ;(Z;)  so,  a 
faculty  is  only  to  the  first  grantee,  and  cannot  be  transferred  by  hira,(c)  for 
a  seat  in  the  church  belongs  not  to  the  person,  but  to  the  house,  and  there- 
fore a  grant  to  a  man  and  his  heirs  is  bad  in  point  of  law  ;((:/■)  so,  where 
there  i^  a  prescriptive  right,  it  cannot  be  exercised  *by  transferring  p^^f>_,-i 
to  persons  not  inhabitants  of  the  house  or  parish. (e)  L         J 

So,  a  seat  cannot  be  claimed  by  prescription  as  appendant  to  land,  but  to 
a  house,  for  the  seat  belongs  to  the  house  in  respect  of  the  inhabitants 
thereof.(y)  Extra-parochial  persons,  therefore,  cannot  establish  a  claim  to 
a  seat  in  the  body  of  a  parish  church  without  proof  of  a  prescriptive  title,  if 

(o)  2  Roll.  Abr.  288.  (/;)  1  Pliill.  31G;  1  Hn^g.  394. 

(v)  Storks  V.  Booth,  1  T.  R.  428  ;  1  Consist.  332.  (r)  Wats.  C.  L.,  c.  3:1. 

(s)  2  Roll.  Rep.  2S8  ;  but  see  contra,  Presgravc  v.  Shrev^sbury  (Cliurcliwardens,)  1 
Salk.  167.  (0  Wats.  C.  I-.,  c.  39. 

(;/)  Willie  V.  Mott,  1  Ungg.  33.  (x)  1  Phill.  323. 

(y)  3  Phill.  516,  n. ;  and  sec  further,  Burn's  E.  L.,  Phill.  ed.,  359,  a,  b. 

(z)  3  Inst.  302. 

(«)  1  Consist.  322 ;  Fuller  v.  Lane,  2  Add.  247  ;  Fry  v.  Flood,  2  Curt.  356, 

(b)  2  Consist.  319.  (c)  Stocks  v.  Booth,  1  T.  R.  428. 

(of)  Langlcy  v.  Chute,  T.  Raym.  246.  See  also  Rogers  v.  Brook,  cited  1  T.  R.  431, 
n.  (a).  (e)  2  Consist.  319.  (/f  1  Inst.  121,  b. ;  Gibbs.  222. 


290  crabb's  law   of   real   property. 

they  can  establish  it  even  by  prescription  ;(o•^  but  a  pew  in  an  aisle  or 
chancel  may  belong  to  a  non-parishioner,(A)  for  the  case  of  an  aisle  or  chan- 
cel depends  upon,  and  is  governed  by,  other  considerations  ;(i)  and  in  Davis 
V.  Witts, (^)  it  was  held,  that  a  pew  in  the  aisle  of  a  church  may  be  pre- 
scribed for  as  appurtenant  to  a  house  out  of  the  parish. 

There  is  no  such  thing  as  a  right  to  a  pew  in  gross  or  at  large;  it  is  a 
right  which  can  only  be  held  as  appurtenant  to  a  messuage,  and  enjoyed  by 
a  person  only  so  long  as  he  continues  to  inhabit  such  messuage ;(/)  therefore, 
a  pew  annexed  by  prescription  to  a  messuage  cannot,  as  has  been  erroneously 
imagined,  be  severed  from  the  occupancy  of  the  house,  but  passes  with  the 
messuage,  the  tenant  of  which  for  the  time  being  has  de  jure  the  prescrip- 
tive right  to  the  pew,(m)  and  it  cannot  be  sold  or  let  without  an  Act  of  Par- 
liament ;(n)  therefore,  where  an  occupier  of  a  pew  ceases  to  be  an  inhabitant 
of  a  parish,  he  cannot  let  the  pew  with,  and  thus  annex  it  to  his  house,  but 
it  reverts  to  the  churchwardens  for  their  disposal  ;(n)  and  a  custom  pleaded 
that  pews  are  appurtenant  to  certain  houses,  and  are  let  by  the  owner  to 
persons  who  are  not  inhabitants  of  the  parish,  is  bad  ;(o)  so,  a  permission 
by  churchwardens  for  a  person  to  sit  in  a  pew  temporarily,  in  order  by 
r*4.nRl  k"^*^pi"&  possession  for  *the  future  tenant  to  carry  into  effect  the 
L  -^  conditions  of  sale  of  a  house,  is  illegal  as  confirming  a  sale  of  the 
pew;(/;)  but  if  a  house  to  which  a  pew  is  appurtenant  be  let  to  a  parish- 
ioner, in  that  character  he  is  clearly  entitled  to  the  pew.(|7) 

485.  The  right  in  a  particular  pew,  when  created  by  a  faculty,  may  be 
apportioned  ;  therefore,  where  a  faculty  was  granted  to  a  man  and  his 
family,  as  owner  and  occupier  of  a  certain  dwelling-house,  and  the  house 
was  afterwards  divided,  the  occupier  of  one  part  of  the  dwelling-house, 
though  a  very  small  part,  was  held  to  have  some  right,  and  therefore  might 
maintain  an  action  against  the  churchwardens  for  disturbing  him  in  the 
enjoyment  of  it,  Harris  v.  Drewe  ;(r)  and  it  was  there  said,  the  plaintiff 
having  a  right  to  use  the  pew,  the  churchwardens  had  no  right  to  interfere 
as  they  did,  and  they  were  wrong-doers.  "It  may  certainly  happen,  in 
consequence  of  a  house  having  been  subdivided,  that  three  or  four  families 
may  become  entitled  to  the  use  of  a  pew  belonging  to  the  original  messuage, 
and  they  may  require  more  accommodation,  and  a  question  may  arise  how 
many  persons  are  entitled  to  use  the  pew  in  respect  of  each  of  the  subdivi- 
sions.    That  is,  however,  a  matter  to  be  settled  among  themselves. "(s) 

48G.  As  a  seat  in  a  church  may  be  prescribed  for,  so  also  may  a  priority 
of  seat ;  thus  it  Avas  declared  in  the  case  of  Carlton  v.  Hutton.(/)  The 
Archbishop  of  York  sent  an  inhibition  to  Carlton,  until  the  matter  should  be 
determined  before  him,  but  prescription  was  surmised,  and  thereupon  pro- 
hibition obtained,  because  as  well  priority  of  seat,  as  the  seat  itself,  may  be 

(ff)  Byerley  v.  Windus,  5  B.  &  C.  1  ;>  S.  C,  7  D.  &  R.  564.     See  alsoHallack  v.  Cam- 
bridge University,  1  G.  &  D.  100.  (A)  Barrow  v.  Keen,  1  Sid.  361. 
(j)  2  Add.  427.              (k)  Forr.  14.              {I)  Mainwaring  v.  Giles,  5  B.  &  A.  360.b 
(m)  1  Hagg.  Cons.  319.               (n)  1  Tlagg.  Rep.  319.  (o)  1  Hagg.  Cons.  317. 
ip)  Blake  V.  Usborne,  3  Hagg.  Rep.  726.         (^/)  2  Add.  428.         {r)  2  B.  &  Ad.  164.'-- 
(s)  Per  Littledalc,  J.,  lb,                       (t)  Noy,  78 ;  S.  C,  Palm.  424 ;  S.  C,  Latch,  116. 

*Eng.  Com.  Law  Reps.  xi.  137.        ^Id.  vii.  129.        'Id.  xxii.  50. 


RIQHT     TO     PEWS,     ETC.  291 

claimed  by  prescription  ;(?/)  so,  priority  in  a  seat  in  the  body  or  aisle  of  the 
church  may  be  %ppropriated,  and  belong  to  a  house,  by  faculty  or  p»j^r.q-i 
prescription,  which  presupposes  a  faculty. (a;)  L         J 

487.  It  is  necessary  in  the  case  of  prescription  to  shew,  that  the  use  and 
occupation  of  the  seat  have  from  time  immemorial  been  appurtenant  to  a 
certain  messuage  ;(?/)  a  prescriptive  right  must  be  clearly  proved,  the  facts 
must  not  be  equivocal,  and  they  must  be  such,  as  are  not  inconsistent  with 
the  general  right. (?/)  Where  a  prescription  is  interrupted,  a  jury  is  not 
bound  to  presume  a  faculty  from  long  undisturbed  possession. (z) 

488.  Reparation  from  time  to  time  is  necessary  to  be  pleaded  and  proved, 
in  order  to  make  out  a  prescription ;(«)  if,  therefore,  a  person  prescribe  that 
he  and  his  ancestors,  and  all  they  whose  estate  he  hath,  have  used  to  sit  in 
a  certain  seat  in  the  nave  of  the  church  time  out  of  mind,  in  consideration 
that  they  have  used  time  out  of  mind  to  repair  the  said  seat,  this  is  a  good 
prescription,  and  the  ordinary  cannot  displace  him  ;(6)  so,  if  any  repairs 
have  been  required  within  memory,  it  must  be  proved  that  they  have  been, 
made  at  the  expense  of  the  party  setting  up  the  prescription.  The  onus 
and  bene/iciicm  are  supposed  to  go  together;  mere  occupancy  does  not  prove 
the  right, (c)  and  mere  repairing  for  thirty  or  forty  years  will  not  exclude 
the  ordinary  ;(rf)  so,  lining  and  putting  new  cushions  into  pews  are  not 
repairs,  but  mere  ornament ;  these  are  not  usually  done  by  the  parish. (e) 

489.  In  courts  of  common  law  mere  occupation  or  user,  or  as  it  is  more 
properly  called,  possession,  if  long  continued,  *has  been  considered  p^i-irv-i 
sufficient  evidence  for  a  jury  to  presume  a  faculty ;  therefore,  in  L  -I 
Rogers  v.  Brooks, (/)  a  thirty-six  years'  exclusive  possession  was  held  suffi- 
cient presumptive  evidence  of  a  prescriptive  right,  although  the  church  had 
been  rebuilt  about  forty  years  before  ;  but  in  Stocks  v.  Booth(o-)  it  was  held, 
that  possession  for  above  sixty  years  of  a  pew  in  a  church  was  not  a  suffi- 
cient title  to  maintain  an  action  upon  the  case  for  disturbance  in  the  enjoy- 
ment of  it,  and  that  the  plaintiffmust  prove  a  prescriptive  right  or  a  faculty, 
and  should  claim  it  as  appurtenant  to  a  messuage ;  so,  in  Griffith  v. 
Matthews,(/t)  where  there  was  thirty  years'  mere  possession,  the  seat,  which 
was  before  open,  having  been  built  and  inclosed  during  that  time,  it  was  left 
to  a  jury  to  consider  whether,  under  all  the  circumstances  of  the  case,  this 
pew  so  erected  was  appurtenant  to  the  plaintiff's  messuage  ;  the  jury  found 
for  the  defendant  and  the  Court  refused  a  new  trial.  It  was  there  said,  "If 
it  had  not  appeared  when  and  at  whose  expense  this  pew  was  built,  or  that 
it  had  not  been  a  pew  before  1758,  possession  from  that  time  would  have 
been  sufficient  evidence  .to  have  warranted  the  jury  in  presuming  that  a 
faculty  had  been  granted. "(i)  See  also  Morgan  v.  Curtis, (A:)  where  a  pre- 
scription for  a  seat  was  held  to  be  destroyed  by  showing  that  it  was  an  open 

(«)  Gibs.  222.  (x)  2  Roll.  Abr.  288;  Lonsley  v.  Hayward,  1  Y.  &  J.  583. 

(y)  Pettman  v.  Brid^er,  1  Pliill.  324.  («)  Morgan  v.  Curtis,  3  Man.  &  Ry.  389. 

(a)  Woolcombe  v.  Ouldridgc,  3  Add.  6.  (h)  2  Roll.  Abr.  288. 

(c)  Pettman  v.  Bridger,  sup.  (d )  2  Roll.  Abr.  288  ;  1  liagg.  Consist.  322. 

(e)  3  Pliill.  331.  (/)  1  T.  R.  431,  n.  fg-)  Id.  428.  (A)  3  T.  R.  290. 

(t)  Per  Buller,  J.,  lb.  {k)  3  Man.  &.  Ry.  389. 


292  crabb's   law  of  real   property. 

seat  upwards  of  fifty  years  ago,  but  now,  by  the  Prescription  Act,  2  &  3  W. 
4,  c.  71,  a  claim  to  a  pew  after  twenty  years  is  not  to  be  defeated  by  shew- 
ing its  commencement  prior  to  that  time,  see  Dig.  P.  iii.  tit.  Prescription. 

490.  A  pew  may  be  annexed  to  a  house  by  a  faculty,  as  well  as  by  pre- 
scription.(/)  Faculties  for  the  exclusive  use  of  pews  are  of  different  descrip- 
tions ;  as  to  a  man  and  his  family,  so  long  as  they  continue  inhabitants  of  a 
certain  house,  or  so  long  as  they  continue  inhabitants  generally  ;  or  appro- 
P^ .. .-,  priating  certain  pews  to  certain  messuages  or  *farm-houses,  or 
L  -'  faculties  at  large  :  the  first  is  considered  the  proper  form  of  a  grant 
of  this  description,  and  is  the  most  usual  in  modern  times  ;(m)  the  second  is 
objectionable,  as  it  often  entitles  parishioners  to  the  exclusive  occupancy 
when  they  are  no  longer  in  a  situation  to  be  suitable  occupants,  whatever 
their  ancestors  may  have  been  ;(n)  the  third  sort  is  considered  as  the  founda- 
tion of  the  prescriptive  claims  recognised,  at  common  law.(o)  The  last  kind 
of  faculties  appear  to  be  merely  void,  as  no  faculty  will  be  supported  either 
at  common  law  or  in  the  ecclesiastical  courts  to  the  extent  of  entitling  any 
person  who  is  a  non-parishioner  to  a  seat  in  the  body  of  the  church. (/)) 

491.  It  seems  now  to  be  settled  that  a  faculty  obtained  by  surprise  and 
undue  connivance  may  be  revoked, (y)  but  the  superior  courts  are  reluctant 
to  interfere  with  the  inferior  courts  in  matters  of  faculty,  Woolcombe  v.  Ould- 
ridge,(r)  where  it  was  observed  that  faculties  are  generally  so  much  within 
the  discretion  of  the  local  judge,  that  there  must  be  a  considerable  degree  of 
general  inconvenience  to  induce  a  reversal  of  his  decree. 

When  a  faculty  limited  to  a  certain  period  expires,  the  right  of  the  parish- 
ioners revives  to  the  pews  which  were  the  subject  of  the  faculty. (s) 

492.  A  faculty,  like  a  prescription,  may  be  presumed,  but  mere  posses- 
sion, though  long  continued,  will  not  always  be  sufficient;  therefore,  where 
a  pew  in  a  chancel,  claimed  in  right  of  a  messuage,  was  shewn  to  have  been 
erected  on  the  site  of  old  open  seats  in  1773,  and  there  was  no  evidence  of 
any  faculty,  it  was  held,  that  the  judge  rightly  directed  the  jury,  that  the 
evidence  of  the  former  open  state  of  the  seats  destroyed  the  prescription, 

j^  -,  and  left  it  to  them  to  say  *whether  upon  the  evidence  merely  of 
L  -^  long  undisturbed  possession,  any  faculty  might  be  presumed,  and  a 
new  trial  was  refused. (/) 

493.  Besides  the  right  to  a  pew,  acquired  either  by  a  faculty  or  a  pre- 
scription, there  is  another  sort  of  right  which  has  been  termed  "  possessory." 
This,  by  the  ecclesiastical  courts,  is  held  sufficient  to  maintain  a  suit  against 
a  mere  wrong-doer,  and  as  the  fact  of  possession  implies  either  the  virtual  or 
actual  authority  of  those  having  power  to  place,  the  disturber  must  show  that 
he  has  been  placed  there  by  such  authority,  or  must  justify  his  disturbance  by 
shewing  a  paramount  right,  a  right  paramount  to  the  ordinary  himself,  namely, 

(Z)  1  T.  R.  431. 

(m)  Butt  V.  Jones,  2  Hagg.  417.         («)  Fuller  v.  Lane,  2  Add.  426 ;  S.  C,  1  Phill.  237. 
(o)  Butt  V.  Jones,  sup.         ( p)  2  Add.  427 ;  5  B.  &  C.  21.^         (q)  Butt  v.  Jones,  sup. 
(r)  3  Add.  6.  (s)  3  Ilagg.  733.  (/)  Morgan  v.  Curtis,  3  Man,  &.  Ry.  389. 

»Eng.  Com.  Law  Reps.  xi.  137. 


RIGHT    TO    PEWS,     ETC.  293 

a  faculty  ;(?<)  the  possession  will  have  its  weight,  and  the  ordinary  will  give 
preference  to  a  person  in  possession  cseteris paribus  over  a  mere  stranger ;(«) 
and  a  possessory  title  is  sufficient  ground  for  resisting  a  faculty  ;(a?)  but  this 
right  is  only  co-extensive  in  duration  with  actual  possession,  and  if  this  be 
abandoned  the  whole  ceases. (?/) 

2.  Disturbance  of  the  Right,  and  the  Remedies, 

494.  Where  a  pew  is  claimed  as  annexed  to  a  house  either  by  faculty  or 
prescription,  the  courts  of  common  law  exercise  jurisdiction  on  the  ground 
that  a  disturbance  of  a  right  to  a  pew  is  a  detriment  to  the  occupation  of  a 
house  to  which  it  is  annexed  ;(z)  so,  where  the  pew  is  in  a  chancel,  the 
freehold  of  an  individual,  the  right  to  it  is  triable  at  common  law,(«)  and  it 
is  properly  triable  by  an  action  on  the  case  ;(6)  so,  it  is  agreed  that  the  plain- 
tiff need  not  shew  reparation  in  his  declaration,  but  he  ought  to  prove  repa- 
ration in  evidence  ;(6)  but  trespass  will  not  lie  for  disturbance  *of  a 
man's  right  to  a  pew,  because  the  plaintiff  has  not  exclusive  posses-  L  J 
sion,  the  freehold  being  in  the  parson  ;(c)  but  such  action  can  only  be  main- 
tained on  proof  of  a  faculty,  or  by  such  evidence  as  fairly  leads  to  the  pre- 
sumption of  a  faculty ;  possession  merely  is  not  sufficient  to  support  such 
an  action. (rf) 

495.  In  all  cases  of  prescriptions  for  seats  the  ordinary  has  nothing  to  do 
with  the  matter,  but  it  is  solely  determinable  at  the  common  law  ;(c)  and 
therefore,  if  a  suit  be  commenced  in  the  spiritual  court,  upon  the  account  of 
prescription,  a  prohibition  will  lie  for  the  party  sued,  because,  whether  the 
prescription  be  good  or  not,  is  not  in  the  spiritual  court  to  judge ;(/)  but 
the  spiritual  courts  may  proceed  upon  libels  grounded  upon  prescriptions, 
where  the  prescription  is  not  denied  ;("•)  and  the  defendant,  if  he  will,  may 
admit  the  prescription  to  be  tried,  as  the  defendant  does  a  modus  or  a  pen- 
sion by  prescription  ;(/i)  so,  an  action  at  common  law  will  not  lie  for  dis- 
turbing another  in  the  possession  of  a  pew  unless  the  pew  be  annexed  to  a 
house  in  a  parish, (i)  the  disturbance  in  that  case,  not  concerning  the  free- 
hold, is  matter  for  ecclesiastical  cognizance  only  •,[i\  so,  if  a  man  claiming 
title  by  prescription  to  an  aisle,  chancel,  &c.,  as  his  freehold,  or  to  a  pew  or 
seat  in  the  body  of  the  church,  or  in  an  aisle,  &c.,  as  appurtenant  to  a  house 
in  the  parish,  is  disturbed  therein  by  the  ordinary,  or  other,  by  a  suit  in  the 
spiritual  court,  he  may  have  a  prohibition,  if  he  suggest  as  grounds  for  it, 
that  he,  or  those  whose  estate  he  hath,  built  or  time  out  of  mind  repaired 
the  same,  and  therefore  had  the  sole  use  of  such  pew. (A;) 

(«)  Pettman  v.  Bridger,  1  Phill.  324.  {x)  Wilkinson  v.  Moss,  11  Lee,  259. 

iy)  Woolcombe  v.  Ouldridge,  3  Add.  7.  (z)  Mainwaringr  v.  Giles,  5  B.  &  A.  362.y 

{(i)  May  V.  Gilbert,  2  Bulstr.  151.  (/>)  lb.     See  Wats.  C  L.,  c.  39. 

(c)  Stocks  V.  Booth,  1  T.  R.  428.     See  also  Noy,  78 ;  1  Sid.  88        {d)  Stocks  v.  Booth,  sup. 
(e)  Hawkins  v.  Compicgnc,  3  Phill.  11. 

(./")   VVitcher  v.  Cheslow,  1  VVils.  17.  {g)  Wats.  C.  L.,  c.  39. 

{h)  Jacob  V.  Dallow,  2  Salk.  551 ;  S.  C,  2  Ld.  Rayra.  755. 
(i)  Mainwaring  v.  Giles,  5  B.  &  A.  362.z 

(A)  See  Corwen  v.  Pym,  12  Co.  105;  Boothby  v.  Bailey,  Hob.  69;  Day  v.  Bedingfield, 
Noy,  104  ;  Francis  v.  Ley,  Cro.  Jac.  366. 

yEng.  Com.  Law  Reps.  vii.  129.     'Id. 


294 


CRABBS  LAW  OF  REAL  PROPERTY. 


J, ,.  .-,  *496.  If  a  party  has  not  a  title  by  prescription,  the  ordinary  has 
L  J  conusance  of  any  disturbance  of  a  man's  possession,  Avhich  is  called 
"perturbation  of  a  man's  seat,"  and  may  quiet  the  same  ;(/)  and  the  ecclesi- 
astical court  will  admonish  a  wrong-doer  not  to  disturb  a  person  in  the  pos- 
session of  a  pew,  although  the  latter  has  no  well-founded  title  to  it  ;(??i)  so, 
in  a  possessory  action  against  a  stranger  and  a  wrong-doer,  the  plaintiff  is 
not  obliged  to  prove  any  repairs  done  by  himself  or  others  whose  estate  he 
hath,(?n)  for  it  is  a  rule  of  law  that  one  in  possession  need  not  shew  any 
title  or  consideration  for  such  possession  against  a  wrong-doer  ;  but  it  is 
otherwise  where  one  claims  a  pew  or  an  aisle'  against  the  ordinary,  for  he 
has  prima  fade  the  disposing  of  all  the  seats  in  the  church  ;  therefore, 
against  him  a  title  or  consideration  must  be  shewn  in  the  declaration,  and 
proved  as  to  the  building  and  repairing. (n) 

497.  Perturbation  of  seat  is  a  civil  proceeding,  which  a  party  may  have 
who  has  been  disturbed  in  the  possession  and  enjoyment  of  his  seat,  whether 
the  disturbance  proceeds  from  the  churchwardens  or  a  mere  intruder;  but 
against  the  churchwardens  there  is  another  remedy  afforded  by  the  ecclesi- 
astical court,  which  has  been  termed  "  a  convenient  remedy,"  namely,  that 
of  citing  the  churchwardens  to  shew  cause  why  they  have  not  seated  cer- 
tain persons  suitably  to  their  condition,  which  mode  was  adopted  in  Walker 
v.  Gunner,(o)  and  approved  of  by  Lord  Stowell.(o) 


[*415] 


^11.  ©tUcr  'Btimmtwxn. 


§499. 
500. 

501. 

502. 

503. 


504. 
505. 


506. 

507. 
508. 
509. 

510, 


Extent  of  the  Right  of  Burial.  ^ 

Right  to  Support  from  the  neigh- 
bouring Land. 

What  an  ancient  House. 

Dodd  V.  Holme. 

When  House  not  entitled  to  Privi- 
leges of  an  ancient  House. 

Partridge  v.  Scott. 

Support  from  neighbouring  Build- 
ings. 

Peyton  V.  TiOndon  (Mayor,  &c.) 

Brown  v.  Windsor. 

Effect  of  Negligence. 

Walters  v.  Pfeil, 

Dodd  V.  Holme. 

Trower  v.  Chadwick. 

Extent  of  tiie  Right  to  Support  from 
the  neighbouring  Building. 

Custom  of  London. 

Extent  of  the  Right  to  Fences. 

Extent  of  the  Liability  to  fence 
against  Cattle. 

Right  to  hang  Linen  to  dry. 


511. 
512. 

513. 

514. 
515. 
516. 
517. 
518. 
519. 
520. 
521. 
522. 
.523. 
524. 


525. 
526. 

527. 


Right  to  land  with  Nets. 

What  Easements  created  by  Li- 
cense. 

Effect  of  Parol  Licenses. 

Hewlins  v.  Shippam. 

Monk  V.  Butler. 

Hoskins  v.  Robins. 

Rumsey  v.  Rawson. 

Harrison  v.  Parker. 

Fentiman  v.  Smith. 

Cocker  v.  Cowper. 

Bryan  v.  Whistler. 

License  executed  not  revocable. 

Liggins  V.  Inge. 

Wallis  V.  Harrison. 

License  not  conferring  a  Freehold 
Interest. 

Wood  V.  Lake. 

Taylor  v.  Waters. 

License  extinguishing  an  Ease- 
ment. 

Legalizing  a  Nuisance. 


(Z)    Jacob  V.  Dallow,  2  Salk.  551 ;  S.  C,  2  Ld.  Raym.  755. 
(m)    Cross  v.  Salter,  3  T.  R.  369. 

(n)   Kenrick  v.  Taylor,  1  Wils.  326,  recognized  in  Cross  v.  Salter.     See  also  Ashby  v. 
Freekliton,  3  Lev.  73.  (o)  1  Hagg.  417. 


OTHER    EASEMENTS.  295 

§  498.  Among  the  other  rights  which  have  been  considered  as  easements, 
are  a  right  to  be  buried  in  a  particular  vault ;  a  right  to  support  from  the 
neighbouring  land  ;  a  right  to  have  fences  maintained  ;  a  right  to  hang  linen 
to  dry  over  the  land  of  another  ;  and  a  right  to  land  with  nets  on  the  banks 
of  a  river. 

1.  Right  of  Burial. 

499.  As  a  rule,  every  person  may  be  buried  in  the  churchyard  of  the 
parish  Avhere  he  dies,  without  paj'ing  anything  for  breaking  the  soil  ;(/j) 
but  a  fee  may  be  due  by  custom  :((/)  a  custom,  however,  for  a  parishoner  to 
bury  *his  deceased  relations  as  near  to  their  ancestors  as  possible  is  ^ .  _-, 
not  good  ;(r)  so,  a  mandamus  will  not  lie  to  compel  the  incumbent  L  ^ 
to  bury  in  a  particular  part  of  a  churchyard,  that  being  a  matter  to  be  left 
to  the  discretion  of  the  incumbent  ;(s)  so,  no  person  may  be  buried  in  the 
church  without  the  incumbent's  consent  -,{1)  but  a  prescription  for  a  right  of 
burial  in  a  chancel,  claimed  as  belonging  to  a  messuage,  was  allowed  in 
Waring  v.  Griffiths  ;(t<)  so,  a  burying-place  may  be  prescribed  for  as  belong- 
ing to  a  manor,  and  an  action  may  be  brought  by  the  lord  for  disturbance  of 
his  burying  there  ;(.r)  and  the  same  rules  are  applicable  to  vaults  as  to 
pews,(?/)  therefore,  a  right  to  make  a  vault  and  have  the  sole  and  exclusive 
use,  if  it  could  be  granted  by  a  rector,  would  be  an  easement ;(?/)  but  it 
seems  that  a  rector  can  make  no  such  grant,  he  can  only  give  a  license  each, 
several  time.(?/) 

2.  Right  to  Support  from  Land  or  Buildings. 

500.  It  is  laid  down  in  Wilde  v.  Minsterley,(2r)  "  that  a  man  who  has 
land  closely  adjoining  my  land,  cannot  dig  his  land  so  near  mine  that  mine 
would  fall  into  his  pit,  and  an  action  brought  for  such  an  act  would  lie  ;" 
and  this  is  confirmed  in  Wyatt  v.  Harrison, (o)  where  it  is  said,  "  It  may  be 
true  that  if  my  land  adjoins  that  of  another,  and  I  have  not  by  building 
increased  the  weight  upon  my  soil,  and  my  neighbour  digs  in  his  land,  so 
as  to  occasion  mine  to  fall  in,  he  may  be  liable  to  an  action  ;"(6)  but  if  A., 
seized  in  fee  of  land  closely  adjoining  the  land  of  B.,  erect  a  new  house 
on  the  confines  of  such  land,  and  B.  afterwards  dig  his  land  so  near  to  the 
foundation  of  A. 's  house  that  it  falls  into  the  pit,  still  no  action  lies  by  A. 
against  B.,  inasmuch  as  it  was  the  fault  of  A.  himself  that  he  built  his  house 
so  near  the  *iand  of  B.,  for  he  cannot  by  his  own  act  prevent  B.  p*.,„-i 
from  making  the  best  use  of  his  land  that  he  can  ;(c)(l)  and  this  L         -1 

ip)  Dogge,  146 ;  1  Hag-g.  Cons.  208 ;  2  B.  &  A.  806.  (9)  Willes,  536. 

()■)  Fryer  v.  Johnson,  2  Wils.  28. 

(s)  Ex  parte  Blackmore,  1  B.  &  Ad.  122.' 

it)  Frances  v.  Ley,  Cro.  Jac.  307.  {u)  1  Burr.  140;  S.  C,  2  Keny.  183. 

(x)  Sir  John  Harvey's  case,  cited  in  Dawney  v.  Dee,  Cro.  Jac.  606. 

((/)  Bryan  v.  Whistler,  8  B.  &  C.  293  ;*-  S.  C,  2  Man.  &,  Rvl.  318. 

(2)  2  Roll.  Abr.  5G4.  (a)  3  B.  &  Ad.  874.  {h)  Per  Tenterdcn,  C.  J.,  lb. 

(c;  Wilde  v.  Minsterley,  2  Roll.  Abr.  564. 

(1)  The  same  point  is  decided"  in  Lasala  v.  Holbrook,  4  Paige,  169,  in  the  case  of  a 
>Eng.  Com.  Law  Reps.  xx.  356.     ''Id.  xv.  219.     »Id.  xxiii.  205. 


296  crabb's  law   of   real   property. 

principle  is  recognised  in  Wyatt  v.  Harrison, (fZ)  wliich  was  a  similar  case, 
and  it  was  said,  "  Whatever  the  law  might  be,  if  the  damage  complained 
of  were  in  respect  of  an  ancient  messuage  possessed  by  the  plaintiff  at  the 
extremity  of  his  own  land,  which  circumstance  of  antiquity  might  imply 
the  consent  of  the  adjoining  proprietor,  at  a  former  time,  to  the  erection  of  a 
building  in  that  situation,  it  is  enough  to  say  in  this  case,  that  the  building 
is  not  alleged  to  be  ancient,  but  may,  as  far  as  appears  from  the  declaration, 
l^^ave  been  recently  erected,  and  if  so,  then,  according  to  the  authorities,  the 
plaintiff  is  not  entitled  to  recover,  for  if  I  have  laid  an  additional  weight 
upon  my  land,  it  does  not  follow  that  he  is  to  be  deprived  of  the  right  of 
digging  his  own  ground,  because  mine  will  then  become  incapable  of  sup- 
porting the  artificial  weight  which  I  have  laid  upon  it ;  and  this  is  consis- 
tent with  2  Roll.  Abr.(e)  The  judgment  will,  therefore,  be  for  the 
defendant."(/) 

501.  If  a  house  has  stood  twenty  years,  it  is  now  considered  to  have  ac- 
quired the  rights  of  an  ancient  house,  whatever  they  may  be,  Dodd  v. 
Holme, («•)  where  it  was  said,  "  Suppose  the  house  to  have  been  substan- 
tially built,  to  have  stood  thirty  or  forty  years,  and  to  have  been  kept  in 
proper  repair,  do  you  say,  that,  if  the  defendant,  by  excavating  his  adjacent 
ground,  let  down  that  house,  though  without  actual  negligence  on  his  part, 
action  would  not  lie  against  him  ?"(/i)(l) 

502.  But,  a  house  will  not  have  the  privilege  of  support  as  an  ancient 
house,  if  it  appear  to  have  been  built  upon  ground  previously  excavated ; 
r*ll8'l  therefore,  in  *Partridge  v.  Scott,(i)  where  a  party  built  a  house  on 
L  -^  his  own  land  which  had  been  previously  excavated  to  its  extremity 
for  mining  purposes,  he  did  not  acquire  a  right  to  support  from  the  adjoin- 
ing land  of  another,  at  least  not  until  twenty  years  had  elapsed  since  the 
house  first  stood  on  the  excavated  land  and  was  in  part  supported  by  the 
adjoining  land,  so  that  a  grant  by  the  owner  of  the  adjoining  land  of  such 
right  to  support  might  be  inferred  ;  and  in  this  case  it  was  said,  »  Rights  of 
this  sort,  if  the}'  can  be  established  at  all,  must,  we  thinli,  have  their  origin 
in  grant.  If  a  man  builds  his  house  at  the  extremity  of  his  land,  he  does 
not  thereby  ac(|uire  any  right  of  easement,  for  support  or  otherwise,  over  the 
land  of  his  neighbour.  He  has  no  right  to  load  his  own  soil  so  as  to  make 
it  require  the  support  of  that  of  his  neighbour,  unless  he  has  some  grant  to 

(d)  3  B.  &  Afl.  874.1  («•)  564,  (/)  Per  Ld.  Tenterdcn,  Id. 

Cf)  1  Ad.  &.  Ell.  493.6  (A)  Per  Littledale,  J.  lb, 

(i)  3  M.  &  VV,  220. 


building'  erected  more  than  thirty-eight  years.  So  in  case  of  an  alteration  of  tlic  level  of 
a  street,  Caliendcr  v.  Marsh,  1  Pick.  434.  Thurston'  v,  Hancock,  12  Mass,  220,  though 
in  this  case  the  doctrine  of  prescription  from  user  for  twenty  years  though  not  adversely, 
is  recognized.  Panton  v.  Holland,  17  Johns.  92,  is  to  the  same  effect.  In  Ricliart  v, 
Scott,  7  W.  460,  it  was  said  no  prtscriptis-e  right  could  be, acquired  where  there  had  been 
no  adverse  user  of  another's  property,  however  long  it  might  be  continued  ;  hence  the  rule 
as  above  stated  in  Lasala  v.  Holbrook  is  adopted. 
(1)  Sec  preceding  note. 

•"Eng,  Com,  Law  Reps,  xxiii,  205,    «Id  xxviii.  128, 


RIGHT     TO     SUPPORT     FROM     BUILDINGS.  297 

that  effect ;  AVyatt  v.  Harrison(y)  is  precisely  in  point  as  to  this  part  of  the 
case  ;  and  we  entirely  agree  with  the  opinion  there  pronounced, "(A;) 

"  In  this  case,  if  the  land,  on  which  the  plaintift^'s  house  v/as  built,  had 
not  been  previously  excavated,  the  defendants  might,  without  injury  to  the 
plaintiffj  have  worked  their  coal  to  the  extremity  of  their  own  land,  without 
even  leaving  a  rib  of  ten  yards,  as  they  have  done.  And  if  the  plantift  had 
not  built  his  house  on  excavated  ground,  the  mere  sinking  of  the  ground 
itself  would  have  been  without  injury.  He  has,  therefore,  by  building  on 
ground  insufficiently  supported,  caused  the  injury  to  himself,  without  any 
fault  on  the  part  of  the  defendants,  unless  at  the  time,  by  some  grant,  he 
was  entitled  to  additional  support  from  the  land  of  the  defendants.  There 
are  no  circumstances  in  the  case  from  which  we  can  infer  any  such  grant 
as  to  the  new  house,  because  it  has  not  existed  twenty  years ;  nor  as  to  the 
old  house,  because,  though  erected  more  than  twenty  years,  it  does  not  ap- 
pear  that  the  coal  under  it  may  not  have  been  excavated  within  twenty 
j'ears  ;  and  no  grant  can  at  all  events  be  inferred,  nor  could  the  right  to  any 
easement  *became  absolute  even  under  Lord  Tenterden's  Act,  (the  p^^Tq-i 
Prescription  Act,  2  &  3  W.  4,  c.  71,  see  Dig.  P.  iii.  tit.  Prescription,)  L  -' 
until  after  the  lapse  of  at  least  twenty  years  from  the  lime  when  the  house 
first  stood  on  excavated  ground,  and  was  supported  in  part  by  the  defen- 
dants' land."(/) 

"If  the  law  stood  as  it  did  before  Lord  Tenterden's  Act,  (s.  2,  sup.),  we 
should  say  that  such  a  grant  ought  not  to  be  inferred  from  any  lapse  of  time 
short  of  twenty  years,  after  the  defendants  might  have  been  or  were  fully 
aware  of  the  facts.  And  even  since  that  act,  the  lapse  of  time,  under  these 
peculiar  circumstances,  would  probably  make  no  material  difference  ;  for 
the  proper  construction  of  that  act  requires,  that  the  easement  should  have 
been  enjoyed  for  twenty  years  under  a  claim  of  right.  Here  neither  party 
was  acquainted  with  the  fact  that  the  easement  was  used  at  all ;  for  neither 
party  knew  of  the  excavation  below  the  house.  We  should  probably  have 
been  of  opinion,  that  there  was  no  user  of  the  easement  under  a  claim  of 
right,  and  that  Lord  Tenterden's  Act,  therefore,  would  not  apply  to  a  case 
hke  this." 

"We  think,  upon  the  whole,  that  the  defendants  are  entitled  to  our  judg- 
ment."(/) 

503.  This  principle  appears  also  to  be  extended  to  the  right  to  support 
from  buildings,  as  well  as  from  land ;  therefore,  in  case  by  a  reversioner  of 
a  house  in  Cheapslde  against  the  owner  of  the  adjoining  house,  for  pull- 
ing it  down  without  shoring  up  the  plaintifi^'s  house,  in  consequence  whereof 
it  was  impaired  and  in  part  fell  down,  it  Avas  held,  first,  that,  upon  this 
declaration,  the  plaintiff"  could  not  recover  on  the  ground  of  the  defendant's 
not  having  given  notice  that  he  was  about  to  pull  down  his  house,  that  not 
being  alleged  as  a  cause  of  the  injury  ;  secondly,  that,  *as  the  plain-  ps^o^-i 
tiff"  had  not  alleged  or  proved  any  right  to  have  his  house  supported  L  J 
by  the  defendant's,  he  was  bound  to  protect  himself  by  shoring,  and  could 
not  complain  that  the  defendant  had  neglected  to  do  it.(?7i) 

(j)  3  B.  &  Ad.  S74.f 

(it)  Per  Alderson,  B.,  lb.        (Z)  Per  Alderson,  B.,  Wyatt  v.  Harrison,  3  B.  &  Ad.  874.S 

(7»)  Peyton  v.  London  (Mayor,  Sec),  9  B.  &.  C.  725. >> 

fEng. Com.  Law  Reps,  xxiii.  205.    eld.    'Id.  jvii.  483. 


298  crabb's  law   of   real  property. 

504.  Where  an  easement  of  this  kind  has  been  given,  the  owner  of  the 
premises  can  only  use  his  rights  subject  to  such  easement;  if,  therefore,  a 
party  grant  an  easement,  and  then  act  so  that  it  cannot  be  enjoyed,  an  action 
lies  against  him,  as  where  a  plaintiff' had  rested  his  house  upon  a  pine-end 
belonging  to  the  defendant,  and  this  had  been  originally  done  by  permission 
of  the  owner  of  the  wall,  it  was  held,  that  where  the  defendant,  by  excavating 
near  his  pine-end  wall,  caused  it  to  sink,  so  that  the  plaintiff^'s  house  which 
rested  against  it  was  injured,  an  action  against  him  was  supported. (n) 

505.  It  appears  that,  where  there  is  no  claim  of  an  easement,  the  owner 
of  premises  adjoining  those  pulled  down  must  shore  up  his  own  in  the 
'nside,  and  do  every  thing  proper  to  be  done  upon  them  for  their  preser- 
vation,(o)  but  still  the  omission  so  to  do  will  not  excuse  negligence  on  the 
part  of  those  taking  down  the  adjoining  house, (o)  and  although  the  founda- 
tion of  the  plaintiff''s  house  was  proved  to  be  rotten  ;  yet  in  Dodd  v.  Holme(;;) 
it  is  said,  "  A  man  has  no  right  to  accelerate  the  fall  ^'(y)  and  in  Trower  v. 
Chadwick,(j')  it  is  laid  down,  that  "  although  a  man  may  haA^e  no  right  of 

■  support  from  the  building  of  his  neighbour,  yet  if  the  latter  choose  to  with- 
draw such  support,  he  must  take  reasonable  and  proper  care  in  so  doing, 
and  for  negligence  and  unskilfulness  he  is  hable  to  an  action." 

r*49n  *506.  Where  a  party  is  entitled  to  the  easement  of  support  from 
L  J  his  neighbour's  building,  it  will  be  an  invasion  of  that  right  if  he 
does  any  injury  to  his  neighbour's  building  in  pulling  down  his  own, 
although  done  with  ever  so  much  care,  as  was  admitted  in  Trower  v.  Chad- 
wick  ;(s)  so,  in  Harris  v.  Ryding,(/)  where  there  had  been  a  grant  of  the 
minerals  under  the  land,  and  the  defendant  removed  them  in  such  a  man- 
ner as  to  cause  the  surface  of  the  earth  to  fall  in,  this  was  held  to  be  a  vio- 
lation of  the  easement  of  support  -which  the  plaintiff  was  entitled  to,  being 
the  entire  removal  of  the  inferior  strata,  which,  however  done,  was 
actionable. 

507.  Nearly  allied  to  this  easement  of  support  from  buildings  is  also  the 
custom  of  London,  by  which  a  man  may  for  the  repair  of  his  house,  set  his 
poles  and  ladders  upon  the  soil  or  house  of  another  adjoining  ;(?/)  but  he 
cannot  break  the  soil  or  house  ;(t/)  so,  the  builder  of  a  house  in  London  on 
a  new  foundation  is  not  entitled  to  erect  half  of  his  flank  or  side  wall  on  his 
neighbour's  vacant  ground. (a:) 

3.  Right  to  have  Fences  maintained. 

508.  As  a  rule,  the  proprietor  of  every  land  is  bound,  by  means  of  fences 
or  otherwise,  to  prevent  his  cattle  from  trespassing  on  the  land  of  his  neigh- 

(n)  Brown  v.  Windsor,  1  Cr.  &  J.  20.  (o)  Walters  v.  Pfeil,  Mood.  &  Malk.  364.' 

( p)  1  Ad.  &  Ell.  493  -^  S.  C,  3  Nev.  &.  Man.  739. 

(9)  Per  Ld.  Denman,  C.  J.  (?)  3  Bing.  N.  C.  334;'  S.  C,  3  Scott,  699. 

(s)  3  Bmg.  N.  C.  334 ;"  S.  C,  3  Scott,  699. 

(t)  Cited  Gale  and  WJiatley,  Law  of  Easements,  265. 

(u)  Priv.  Lond.  59  ;  Com.  Dig.  tit.  London,  (N.  5.)  (x)  2  Bl.  959. 

iEng.  Com.  Law  Reps.  xxii.  334.     ^Id.  x.xviii.  128.     'Id.  xxxii.  142.    "  d.  xxxii.  142. 


OTHER     EASEMENTS.  299 

bour,  "But  he  is  under  no  legal  obligation  to  keep  up  fences  between  ad- 
joining closes  of  which  he  is  owner;  and  even  where  adjoining  lands  which 
had  once  belonged  to  different  persons,  one  of  whom  was  bound  to  repair 
the  fences  between  the  two,  afterwards  became  the  property  of  the  same 
person,  the  pre-existing  obligation  to  repair  the  fences  was  destroyed  by  the 
unity  of  ownership.  And  where  the  person,  who  has  *so  become  ps^on-i 
the  owner  of  the  entirety,  afterwards  parts  with  one  of  the  two  L  -^ 
closes,  the  obligation  to  repair  the  fences  will  not  revive  unless  express 
words  be  introduced  into  the  deed  of  conveyance  for  that  purpose. "(?/)  An 
obligation  may,  however,  arise  by  a  deed  of  agreement  for  one  party  to  re- 
pair fences  for  the  benefit  of  the  owner  of  adjoining  lands  ;  and  in  Boyle  v, 
Tamlin,(2')  it  is  said,  "If  there  was  proof  of  any  such  stipulation,  I  think  it 
would  support  the  allegation,  that  the  defendant  by  reason  of  his  possession 
was  bound  to  repair.  Such  a  right  to  have  fences  repaired  by  the  owner 
of  adjoining  lands  is  in  the  nature  of  a  grant  of  a  distinct  easement  affecting 
the  land  of  the  grantor,  (a) 

509.  This  hability  is,  however,  confined  to  the  cattle  of  his  neighbour, 
or  such  as  are  rightfully  on  the  adjoining  land,  and  does  not  extend  to  cattle 
whicJi  have  no  right  to  be  there,  Dovaston  v.  Payne, (6)  where  it  is  said, 
"  If  the  cattle  of  one  man  escape  into  the  land  of  another,  it  is  not  any  ex- 
cuse that  the  fences  were  out  of  repair,  if  the  cattle  were  trespassers  on  the 
close  from  whence  they  came  ;"(c)  so,  Anon.,  3  Wils.  126,  where  it  is 
said,  "  If  a  man  turn  his  cattle  into  Blackacre  where  he  has  no  right,  and 
they  escape  and  stray  into  my  field,  for  want  offences,  he  cannot  excuse  or 
justify  himself  for  his  cattle  trespassing  in  my  field. "(1) 

4.  Right  to  hang  Linen  to  dry  over  the  soil  of  another,  ^-c. 

510.  A  liberty  to  hang  linen  to  dry  on  lines  passing  over  the  soil  of  an- 
other is  an  easement,  which  was  recognized  in  Drewell  v.  Towler  ;(^/)  but, 
as  the  plaintiff  claimed  a  liberty  for  him  and  the  other  tenants  to  hang  linen 
as  often  as  they  had  occasion  so  to  do,  at  their  free  will  and  pleasure,  and 
*the  jury  found  that  they  had  the  liberty  to  dry  the  linen  of  their  r*49q-| 
own  families  only,  he  was  nonsuited.  '- 

5.  Right  to  land  with  Nets. 

511.  The  user  of  the  banks  of  a  river  for  more  than  twenty  years  by 
fishermen,  who  have  occasionally  sloped  and  levelled  the  same,  is  evidence 
of  a  grant  by  the  owner  of  the  soil,  although  both  the  fishery  and  the  land- 

w 

iy)  Per  Baylcy,  J.,  Boyle  v.  Tamlin,  6  B.  &  C.  337."  (?)  Sup. 

(«)  Per  Bayley,  J.,  Boyle  v.  Tumlin,  sup.  (Ji)  2  H.  Bl.  527. 

(c)  Per  Heath,  J.,  ib,  {d)  3  B.  &  Ad.  735.« 

(1)  Even  where  tliere  arc  statutes  requiring- partition  fences,  the  same  rules  are  applied. 
Rust  V.  Low,  6  Mass.  90.  Stacknole  v.  Healy,  16  id.  23.  Little  v.  Latlirope,  5  Grcenl. 
356.  Avery  v.  Rlaxwell,  4  New  Hamp.  36.  "Wells  v.  Howell,  19  Johns.  145.  Holladay 
V.  Marsh,  3  Wend.  145.     Adams  v.  M'Kenney,  Addis.  258. 

"Eng.  Com.  Law  Reps.  xiii.  191.     «Id.  xxiii.  172. 


300  crabb's   law    of    real   property. 

incr-place  belonged  to  the  same  person,  and  there  was  no  evidence  to  shew, 
that  the  former  owner,  or  those  who  claimed  under  him,  knew  that  the 
shore  had  been  so  used.(e) 

512.  The  origin  of  every  easement  is  referable  to  some  agreement,  ex- 
press or  implied.  The  easements  of  the  more  important  kind,  as  commons, 
ways,  and  water,  are  created  either  by  grant  or  by  prescription  which  sup- 
poses a  grant,  and  uninterrupted  possession  or  enjoyment  has  long  been 
held  to  be  sufficient  evidence  to  be  left  to  a  jury  to  presume  a  grant ;(/) 
but,  as  to  the  minor  rights  above-mentioned,  they  have  been  created  for  the 
most  part  by  license,  and  questions  have  arisen  where  the  license  was  by 
parol,  whether  any  right  of  this  kind  could  be  thereby  created,  and  it  seems 
to  be  now  settled,  that  easements,  like  all  other  incorporeal  hereditaments, 
must  be  under  seal,  therefore,  a  license  by  the  lord  of  a  manor  to  build  a 
cottage  on  the  waste  gave  no  estate  to  the  grantee,  R.  v.  Harrow,  (Inhabs. )(,§•) 
where  it  is  said,  "A  license  is  not  a  grant,  but  may  be  recalled  immediately, 
and  so  might  this  license  the  day  after  it  was  granted  ;"(/')  ^^^  ^^  is  laid 
down,  that  a  license  or  liberty  (amongst  other  things)  cannot  be  created  and 
annexed  to  an  estate  of  inheritance  without  deed.(i) 

« 

-.  *513.  On  this  principle,  where,  for  a  valuable  consideration,  the 
L  J  defendant  and  his  landlord  granted  to  A.,  his  heirs  and  assigns, 
license  and  authority  to  make  at  his  own  expense  a  drain  in  his,  the  defend- 
ant's, land,  and  that  A.,  his  heirs  and  assigns,  should  have  the  foul  water 
collected  on  his  premises  to  run  into  such  drain,  it  was  held,  that,  as  the 
right  claimed  was  a  freehold  right,  assuming  that  it  was  an  easement  only 
upon  the  land  of  another,  and  not  an  interest  in  the  land,  yet  it  could  not  be 
created  without  a  deed,(/t)  "  for  although  a  parol  license  might  be  an  excuse 
for  a  trespass  till  such  license  were  countermanded,  a  right  and  title  to  have 
a  passage  for  the  water  is  a  freehold,  which  requires  a  deed  to  create  it."(/)(l) 

514.  And  the  same  had  been  decided  by  prior  authorities  in  reference  to 
different  easements,  as  Monk  v.  Butler,(?7i)  where  the  plaintiff  in  replevin 
answered  an  avowry  for  damage  feasant  by  a  plea  of  license  from  a  com- 
moner who  had  right  for  twenty  beasts ;  it  was  objected,  that,  if  the  com- 
moner could  license,  he  could  not  do  so  without  deed,  and  of  that  opinion 
was  the  whole  Court. 

(c)  Gray  v.  Bond,  9  B.  &  B.  667.« 

(/)  2  Wms.  Saund.  175,  a.  (g)  4  M.  &  S.  565. 

(A)  Per  Ld.  Ellenborouffh,  C.  B.,  lb. 

(i)  Shcph.  Touclist.  p.  231  ;  1  Inst.  9  ;  Tcrmes  de  Ley,  voc.  Easement. 

(it)  Hewlins  v.  Shippam,5  B.  &  C.  221 ;'  S.  C,  7  D.  &  R.  783 

(1)  Per  Bayley  J.,  5  B.  &  C.  222. 

(m)  Cro.  Jar.  574  ;  recognized  in  Hewlins  v.  Shippam,  sup. 


(1)  Hays  V.  Richardson,  1  Gill  &  Johns.  366.  Cook  v,  Stearns,  1  Mass.  533,  534. 
Thompson  v.  Gregory,  4  Johns.  81.  Subject  to  the  equitable  right  acquired  as  an  exe- 
cuted contract.  Lcfevre  v.  Lefevre,  4  S.  &  R.  241.  Reriek  v.  Kern,  14  S.  &.  R.  271. 
Ricker  v.  Kelly,  1  Greenl.  119,  120.     Davenport  v.  Mason,  15  Mass.  92. 

'Eng.  Com.  Law  Reps.  vi.  308.    fid.  xi.  207. 


OTHER    EASEMENTS.  301 

515.  So,  in  Hoskins  v.  Robins, (n)  an  objection  was  taken  to  such  a  license 
on  account  of  its  not  being  stated  to  be  by  deed,  and  although  the  objection 
was  overruled  on  the  ground,  that  after  verdict  it  must  be  taken  that  the 
license  was  by  deed,  yet  the  Court  were  unanimous  in  thinking  that  such  a 
license  could  not  be  granted  without  deed. 

516.  A  similar  objection  to  such  a  license,  after  verdict  on  a  collateral 
issue,  was  previously  overruled,  because  the  *Iicense  was  only  to 

take  the  profit  unicd  uzce,  and  because  no  estate  passed  by  it.(o)         L  ■*~'^J 

517.  So,  in  Flarrison  v.  Parker,(/?)  where  liberty  and  license,  power  and 
authority,  were  granted  to  the  plaintitf  and  his  heirs  to  build  a  bridge  across 
a  river,  from  plaintiff's  close,  to  the  close  of  A.,  and  liberty  and  license  to 
plaintiff  to  lay  the  foundation  of  one  end  on  A.'s  close,  the  grant  was  by 
deed. 

518.  So,  in  Fentiman  v.  Smith,  where  the  plaintiff  claimed  to  have  a  pas- 
sage for  water,  by  a  tunnel,  over  defendant's  land.  Lord  Ellenborough  lays  it 
down  distinctly,  "The  title  to  have  the  water  flowing  in  the  tunnel  over 
defendant's  land  could  not  pass  by  parol  license  without  deed,  and  the  plain- 
tiff could  not  be  entitled  to  it  as  stated  in  the  declaration,  by  reason  of  his 
possession  of  the  mill,  but  he  had  it  by  license  of  the  defendant  or  by  con- 
tract with  him ;  and  if  by  license,  it  was  revocable  at  any  i\me.{q) 

519.  In  a  case  subsequent  to  Hewlins  v.  Shippam,(r)  where  the  previous 
authorities  are  collected,  the  plaintiff  sued  for  the  obstruction  of  a  drain  which 
had  been  originally  constructed  at  the  plaintiff's  expense,  on  the  defendant's 
land,  by  his  consent  verbally  given.  After  it  had  been  enjoyed  for  some 
time,  the  defendant  obstructed  the  channel,  so  that  the  water  was  prevented 
running  as  before ;  and  the  Court  held  that  the  plaintiff  was  clearly  not 
entitled  to  recover.  "  The  case  of  Hewhns  v.  Shippam,(r)  is  decisive  to 
shew  that  an  easement  like  this  cannot  be  acquired  except  by  deed,  nor  has 
the  plaintiff  acquired  any  other  title  to  the  water  ;  the  mere  entry  into  the 
close  of  another,  and  cutting  *a  drain  there,  cannot  confer  a  title. fsV 

A  distinction  was  there  taken  in  argument  which  had  in  some  cases  L  ''"J 
been  admitted  between  an  agreement  executed  and  one  executory,  but  the 
argument  did  not  prevail,  see  infra,  §  521. 

520.  In  Bryan  v.  Whistler,(?)  the  right  to  be  buried  in  a  particular  vault 
was  held  to  be  an  easement  which  could  be  created  by  deed  only  ;  and 
therefore  a  parol  license  was  held  to  confer  no  right,  though  the  plaintiff 
had  paid  a  valuable  consideration  on  the  faith  of  the  agreement. 

(?))  2  Vent.  123  ;  also  cited  in  Hewlins  v.  Shippam,  sup. 

(o)  Rumscy  v.  Rawson,  1    Vent.  18;  cited  in  Hewlins  v.  Shippam,  5   B.   &,  €.221;" 
S.  C,  7  D.  &  R.  783. 

{p)  6  East,  154  ;  recognized  in  Hewlins  v.  Shippam,  sup. 

(9)  4  East,  109  ;  recognized  in  Hewlins  v.  Shippam,  5  B.  ^^  C.  201.1) 

{r)  Sup.  (s)  Per  Curiam,  Cocker  v.  Cowper,  1  Cr.,  M.  &  R.  418. 

(<)  8  B.  &.  C  298  ;=  S.  C,  2  Man.  &  Ry.  318. 

t-Eng.  Law  Com.  Reps,  xi.  207.     'Id.  xv.  219. 
November,  1846.— 20 


302       ceabb's  law  of  real  property. 

So,  in  nn  earlier  case,  a  right  to  cany  on  a  noisy  trade  was  held  not  to  be 
gained  by  a  parol  license. (.r) 

But  it  is  not  settled  whether  a  parol  license  will  confer  an  easement  of 
light  and  air.(?/) 

521.  The  rule  that  a  parol  license  is  revocable  admits  of  exceptions  upon  dif- 
ferent grounds,  as,  first,  where  the  license  has  been  executed,(  1 )  in  distinction 
from  cases  where  it  is  executory  only;  in  the  next  place,  where  the  license 
does  not  confer  a  freehold  interest ;  and  thirdl}^  where  it  operates  to  extin- 
quish  an  easement.  The  principal  case  of  the  first  kind  is  Winter  v.  Brock- 
well, (z)  where  a  parol  license  to  put  a  skylight  over  the  defendant's  area 
(which  impeded  the  light  and  air  from  coming  to  the  plaintiff's  dwelling 
through  a  window)  could  not  be  recalled  at  pleasure  after  it  had  been  exe- 
cuted at  the  defendant's  expense,  at  least  not  without  tendering  the  expenses 
he  had  been  put  to,  and  therefore  no  action  lay  as  for  a  private  nuisance  in 
stopping  the  light  and  air,  &c.,  and  communicating  a  stench  from  the 
defendant's  premises  to  the  plaintiff's  house  by  means  of  such  skylight.  But 
this  case  is  said  to  be  clearly  distinguishable  from  the  present  (Hewlins 
r*A.9'r'\  *^'  Shippam)(o).  All  that  the  defendant  there  did,  he  did  upon  his 
L  -^  own  land.  He  claimed  no  right  or  easement  upon  the  plaintiff's. 
The  plaintiff  claimed  a  right  and  easement  against  him,  viz.  the  privilege  of 
light  and  air  through  a  parlour  window,  and  a  free  passage  for  the  smells  of 
an  adjoining  house  through  defendant's  area;  and  the  only  point  there 
decided  was,  that,  as  the  plaintiff  had  consented  to  the  obstruction  of  such 
his  easement,  and  had  allowed  the  defendant  to  incur  expense  in  making 
such  obstruction,  he  could  not  retract  that  consent  Avithout  reimbursing  the 
defendant  that  expense.  But  that  was  not  the  case  of  the  grant  of  an  ease- 
ment to  be  exercised  upon  the  grantor's  land,  but  a  permission  to  the  grantee 
to  use  his  own  land  in  a  way  in  which,  but  for  an  easement  of  the  plaintiff's, 
such  grantee  would  have  had  a  clear  right  to  use  it. (6)" 

522.  In  Liggins  v.  Inge,(c)  which  was  the  case  of  a  parol  license  to  erect 
a  weir,  the  Court  held  it  not  to  be  revocable,  on  the  ground  that  it  had  been 
executed.  "There  is  a  clear  distinction  between  a  license  to  do  something 
which  in  its  own  nature  seems  intended  to  be  permanent,  and  by  which 
expense  is  incurred,  and  a  license  to  do  acts  which  consist  in  repetition,  as 
to  walk  in  a  park,  to  use  a  carriage-waj'-,  to  fish  in  the  waters  of  another,  or 
the  like;  which  license,  if  countermanded,  the  party  is  but  in  the  same  situ- 
ation as  he  was  before  it  was  granted  ;  but  this  is  a  license  to  construct  a 
work  which  is  attended  with  expense  to  the  party  using  the  license,  so  that, 
after  the  same  is  countermanded,  the  party  to  whom  it  was  granted  may 
sustain  a  heavy  loss,  and  it  was  the  fault  of  the  person  himself  if  he  meant 

Cx)  Bradley  v.  Gill,  1  Lutw.  70. 

(y)  Blanchard  v.  Bridges,  4  Ad.  &,  Ell.  195.<»  (z)  8  East,  309. 

(a)  5  B.  &  C.  221 ;'  S.  C,  7  D.  &  R.  783.  (6)  Per  Bayley,  J.,  lb. 

(c)  7  Bing.  6D3.f 


(1)  Ante,  §513,  note  1. 
dEng.  Com.  Law  Reps.  xxxi.  46.    ^Id.  xi.  207.    fid.  xx.  287. 


OTHER    EASEMENTS.  303 

to  reserve  the  power  of  revoking  such  license  after  it  was  carried  into  effect, 
that  he  did  not  expressly  reserve  that  right. (r/j" 

523.  In  Wallis  v.  Harrison,(e)  the  same  distinction  hetween  *agree-  p^^gs"! 
ments  executed  and  executory  is  recognized,  therefore,  a  parol  L 
license  from  A.  to  B.  to  enjoy  an  easement,  as  to  make  a  railway  over  A.'s 
land,  was  held  countermandable  at  any  time  while  it  was  executory  ;  and  if 
A.  conveyed  the  land  to  another,  the  license  was  determined  at  once,  with- 
out notice  to  B.  of  the  transfer,  and  B.  was  liable  in  trespass  if  he  after- 
wards entered  upon  the  land. 

524.  In  the  next  place,  a  license  not  conferring  a  freehold  interest  in 
land  has  been  held  not  revocable,  as  in  Wood  v.  Lake,(/)  which  was  a 
license  to  stack  coals  on  the  close  of  another  for  seven  years,  and  it  was 
there  held,  that  it  could  not  be  revoked  at  the  end  of  three  years  ;  so  in 
Webb  V.  Paternoster,(o-)  which  was  a  license  to  lay  a  stack  of  hay  on  the 
land  of  Sir  W,  Plummer  for  a  reasonable  time,  afterwards  Sir  W.  Plummet 
leased  the  land,  and  the  lessee  turned  in  his  cattle  and  ate  the  hay,  for  which 
an  action  was  brought,  and  the  whole  Court  held  that  such  license  was  good, 
and  could  not  be  countermanded  within  a  reasonable  time,  but  that  more  than 
a  reasonable  time  had  elapsed,  (half  a  year,)  and  therefore  the  hcense  was  at 
an  end. 

525.  So,  in  Taylor  v.  Waters, (7i)  which  was  an  action  against  the  door-keep- 
er of  the  Opera-house,  for  denying  admission  to  the  plaintiff",  who  was  the  hold- 
er of  a  silver  ticket  purporting  to  give  him  an  entrance  into  that  theatre  for 
twenty-one  years,  it  was  objected  that  the  right  claimed  was  an  interest  in 
land,  and  being  for  more  than  three  years  could  not  pass  without  a  writing 
signed  by  the  party,  or  his  agent  authorised  in  writing,  and  moreover,  that 
being  an  incoporeal  hereditament  it  could  only  pass  by  deed ;  the  Court, 
however,  held,  that  it  was  not  such  an  interest  in  land  as  to  require  a  deed, 
being  only  a  license  irrevocable  *to  permit  the  plaintiff" to  enjoy  cer-  r^AOQl 
tain  privileges  thereon,  and  did  not  require  to  be  in  writing  by  the  L  -^ 
Statute  of  Frauds,  though  it  extended  beyond  the  term  of  three  years  ;  and 
after  citing  Wood  v.  Lake,(i)  Webb  v.  Paternoster,(J)  and  Winter  v.  Brock- 
well, (A:)  it  was  added,  "  These  cases  abundantly  prove  that  a  license  to  enjoy 
a  beneficial  interest  in  land  may  he  granted  without  deed.(Z)"  So,  in  Hew- 
lins  V.  Shippam,(m)  it  is  said,  "  Webb  v.  Paternoster,  Wood  v.  Lake,  and 
Taylor  v.  Waters,(n)  were  not  cases  of  freehold  interest,  and  in  none  of  them 
was  the  objection  taken  that  the  right  lay  in  grant,  and  therefore  could  not 
pass  without  deed.  These,  therefore  cannot  be  considertd  as  authorities 
upon  the  point;  and  on  these  grounds  therefore  that  the  right  claimed  by  the 
declarations  (in  this  case)  is  a  freehold  right,  and  that  if  the  thing  claimed  is 
to  be  considered  as  an  easement,  and  not  an  interest  in  the  land,  such  a  right 

{d)  Per  Tindal,  C.  J.,  lb.  (e)  4  M.  &  W.  538. 

(  /•)  Say,  3.  ig)  Palm.  71  ;  S.  C,  Poph.  151 ;  S.  C,  2  Roll.  Pvep.  152. 

(h)  7  Taunt.  384.f  (i)  Say,  3. 

C  ;■)  Palm.  71  ;  S.  C,  Poph.  151 ;  S.  C,  2  Roll.  Rep.  153.         (A-)  8  East,  309. 

(I)  Per  Gibbs,  C.  J.,  Taylor  v.  Waters,  7  Taunt.  384.S     (w)  5  15.  &  C.  221.''     (n)  Sup. 

f  Eng.  Cora.  Law  Reps.  ii.  140.    sId.  ii.  140.    Hd.  .xi.  207.  ' 


304  crabb's  law  of  real  property. 

cannot  be  created  without  deed,  we  are  of  opinion  that  the  nonsuit  was 
right,  and  that  the  rule  ought  to  be  discharged  ;(o)"  but  see  WiUiams  v. 
Morris.  (/J) 

526.  When  a  license  operates  to  extinguish  an  easement,  it  has  also  been 
held  not  to  be  revocable,  as  where  permission  was  given  to  a  man  to  erect  a 
weir  on  his  own  land,  which  was  incompatible  with  the  continuance  of  the 
easement  of  water  over  it,  to  which  the  licenser  was  entitled  ■,{q)  for  "  there 
is  nothing  unreasonable  in  holding  that  aright  which  is  gained  by  occupancy 
may  be  lost  by  abandonment. "(r)  It  is  here  assumed  that  a  right  to  water 
is  o-ained  by  mere  occupancy,  but  this  point  has  since  been  much  discussed 
as  to  the  extent  to  which  it  ought  to  be  carried,  see  ante,  §  417. 

*527.  On  the  subject  of  easements  generally,  it  remains  only  to 
[■430J  Q]3ggj,yp^  t-i^at  many  acts  done  upon  or  in  respect  of  the  land  of  ano- 
ther, which,  as  being  injurious,  would  be  actionable  nuisances,  may,  after 
the  requisite  period  of  enjoyment,  become  lawful,  and  the  party  acquire  a 
prescriptive  title  to  them  as  easements ;  thus  a  right  not  to  have  water  dis- 
charged upon  one's  land  is  an  incident  of  property,  and  the  infringment  of 
that  right  is  actionable,  but  a  right  to  let  water  off,  even  in  an  impure  state, 
may  be  acquired,  like  any  other  easement,  by  user  ;(.s)  so,  aright  to  whole- 
some untainted  air  is  at  common  law  a  right  appurtenant  to  a  house,  and  the 
communicating  noisome  smells  is  a  nuisance,  unless  the  business  which 
creates  the  nuisance  has  been  carried  on  there  for  so  great  a  length  of  time, 
that  the  law  will  presume  a  grant  from  the  neighbours  in  favour  of  the  party 
who  causes  it  ;(<)(!)  so,  user  may  justify  the  exercise  of  a  noisy  trade  ;(?<) 
but  nothing  less  than  twenty  years'  user  will  suffice  to  legaHze  a  nuisance, 
and,  therefore,  where  a  defendant  alleged  a  user  of  only  three  years,  judg- 
ment was  given  against  him.(/) 

528.  But  whether,  if  the  party  complaining  come  to  the  nuisance,  he 
have  any  right  of  action  for  the  injury  sustained  thereby  is  not  settled.  It 
has  been  said,  "  If  my  neighbour  makes  a  tan-yard  so  as  to  annoy  and  ren- 
der less  salubrious  the  air  of  my  house  or  garden,  the  law  will  furnish  me 
Avith  a  remedy ;  but  if  he  is  first  in  possession  of  the  air,  and  I  fix  my  habi- 
tation near  him,  the  nuisance  is  of  my  own  seeking,  and  may  continue  ;"(t') 
and  this  doctrine  seems  to  derive  some  authority  from  Moore  v.  Browne  ;{w) 
Leeds  V.  Shakesby  ;(a:)  Tenant  v.  Goldwin;(?/)  Lawrence  v.  Obee  ;(z)  sed 
^  *contra,  4  Ass.,  pi.  3  ;  F.  N.   B.    124,  H.  ;  Westbourne  v.  Mor- 

L'^^^^J  daunt ;(«)  Beswick  v.  Cunden  ;(6)  Penruddock's  case;(c)  Some  v. 
BarwisJi;(rf)  see  also  Roswell  v.  Prior.(e) 

(o)  Per  Baylev,  J.,  Hcwlins  v.  Shippam,  sup.  (;■')  8  M.  &  W.  488. 

(n)  Liffffins  v."  Ir.o-e,  7  Bing.  093.'  (0  Per  Tindal,  C.  J.,  lb. 

s)  Wricrht  V.  Williams,  1  M.  &  W.  77.  (0  Bliss  v.  Hall,  6  Scott,  500. 

(t)  Elliotson  V.  Feelham,  2  Bing.  N.  C,  134  ;t  S.  C,  2  Scott,  174. 
U  2  Connn.  402.  (w)  Dy,.  319  b,  pi.  17.  (x)  Cro.  El.  351. 

(,;)  2  L(l.  Raym.  1089  ;  S.  C,  1  Salk.  360.  («)  3  Campb.  514. 

M  Cro.  El.  191.  (/')  Id.  402.  (c)  5  Co.  101.  {d)  Cro.  Jac.  231. 

{e)  12  Mod.  635 ;  Gale  and  Whatley,  Law  of  Easements,  277  et  seq. 


(1)  The  right  of  the  public  is  not  thus  affected.    Commonwealth  v.  Miltenberger,  7  \V. 

450 

'Eng.  Com.  Law  Reps.  xx.  287.        ''Id.  xxix.  283. 


OFFICES. 


305 


SECTION  XI. 


OFFICES. 


§  529.  The  subject  of  offices  may  be  considered. 

1.  As  to  their  nature  and  several  kinds- 

2.  How  created. 

3.  How  granted. 

4.  Who  may  hold  offices. 

5.  Execution  of  an  office. 

6.  What  estates  may  be  had  in  an  office. 

7.  How  forfeited  or  lost. 

8.  Disturbance  of  an  office. 


L 


jirtturt  of  ail  <!5fCicc,  antr  tf\t  XiiiUvtnt  Itintrs. 


§  530.  Definition  of  an  Office. 
531.  Different  Kinds  of  Offices. 
Civil  and  Military. 


531.  Public  and  Private. 

53'^.  Ancient  and  Modern  Offices. 

533.  Judicial  and  Ministerial  Offices. 


§  530.  An  office  is  a  right  to  exercise  a  private  or  public  employment, 
and  to  take  the  fees  and  emoluments  belonging  thereto. 

Offices  being  annexed  in  many  instances  to  land  and  holden  by  tenure, 
they  are  ranked  among  incorporeal  hereditaments  ',{f^  thus  the  office  of 
High  Steward  Avas  *originally  annexed  to  the  manor  of  Hinckley, 
in  Leicestershire,  and  so  of  many  others. (^) 


[*432] 


531.  Offices  are  distinguished  according  to  the  nature  of  their  respective 
trusts  into  civil  and  military  ;(/t)  and  again  they  are  divided  into  public  and 
private,  not  so  much  from  the  extent  of  the  authority,  as  from  the  nature  of 
the  duty,  R.  v.  Burnell,(2)  where  it  was  a  question  whether  a  censor  of  the 
College  of  Physicians  was  such  an  officer  as  ought  to  take  the  oaths  under 
the  25  C.  2,  c.  2,  a  public  officer  being  one  whose  duty  concerned  the  re- 
venue or  the  peace  of  the  realm,  and  a  private  officer,  one  whose  duty  res- 
pected the  concerns  of  individuals,  of  which  kind  it  was  contended  that  the 
censorship  of  the  college  ought  to  be  reckoned. (i) 

So,  after  much  discussion  a  mandamus  was  granted  to  restore  an  attorney 
of  the  court  of  the  city  of  Canterbury,  who  had  been  removed  by  the  mayor, 
on  the  ground  that  the  office  of  attorney  is  a  public  office  which  concerns  the 
administration  of  justice. (J) 

532.  Offices  are  also  distinguished,  in  respect  of  their  antiquity,  into 
ancient  and  modern,  or  those  of  new  creation.  And  herein  it  is  observable 
that  constant  usage  hath  not  only  sanctified  the  iirst  establishment  of  such. 


(  f)  2  Comm.  36.  (g)  Coll.  Claims  of  the  Peerage,  1S5. 

(A)  2  Comm.  3G.  (t)  Carth.  479  ;  S.  C,  nom.  R.  v.  Burrell,  5  Mod.  433. 

(;■)  Hurst's  case,  1  Lev.  75  ;  S.  C,  1  Sid.  94,  152;  S.  C,  1  Keb.  34'J. 


306  crabb's  law  of  real  property. 

offices  as  have  existed  time  out  of  mind,  but  also  hath  prescribed  and  settled 
the  manner  in  which  they  have  and  are  to  exist,  in  what  manner  to  be  exer- 
cised, and  how  to  be  disposed  of,  &c.  ;(A:)  and  a  usage  short  of  what  m.ay  be 
legally  set  up  by  prescription  will  be  sufficient  for  this  purpose,  "  for  new 
usages  and  new  customs  grow  up,  and  by  continuance  get  firm  root  in  a  time 
much  short  of  legal  prescription." (/) 

r^4.^T\  *'^^  officer  that  is  constituted  by  Act  of  Parliament  hath  more 
L  -J  authority  than  the  Act  that  creates  him,  or  some  subsequent  Act  of 
Parliament  doth  give  him,  for  he  cannot  prescribe  as  an  officer  at  common 
law  may  do.(7n) 

533.  Offices  are  again  distinguished  into  judicial  and  ministerial  only ; 
the  first,  relating  to  the  administration  of  justice  or  the  performance  of  duties 
that  require  deliberation  and  judgment,  ought  to  be  filled  by  persons  of  suf- 
ficient capacity  and  property,  who  must  personally  execute  the  office  or 
trust  reposed  in  them.(?z)  But  with  respect  to  ministerial  offices,  they  may 
be  executed  by  persons  physically  capable  of  performing  the  duty  required, 
as  infants,  &c.(o) 

By  the  ancient  common  law,  officers  ought  to  be  "  honest  men,  legal  and 
sage,  qui  melius  scinnt  et  possint  officio  illo  intendere,^^  it  being  the  policy 
of  prudent  antiquity  (says  my  Lord  Coke)  that  officers  should  ever  give 
grace  to  the  place,  and  not  the  place  to  the  officer.(;j)  As  to  the  statutory 
provisions  respecting  particular  offices,  and  the  oaths  of  office,  &c.,  see  Dig. 
P.  i.  tit  Office. 


II-  iSjo\M  cvcatetr, 

§  534.  Created  by  tlie  Crown.  |  §  535.  To  hold  Courts  of  Equity  not  grantable. 


§  534.  The  queen  being  the  fountain  of  all  power  and  authority,  all 
offices  must  have  been  originally  created  by  the  Crown  ;((7)  but  there  are 
many  offices  which  have  existed  time  out  of  mind,  and  are  therefore  said 
-,  to  be  derived  *from  immemorial  usage  ;(r)  but,  since  the  34  E.  1, 
L  J  the  queen  cannot  erect  a  new  office  with  new  fees,  for  that  would 
be  a  tallage  upon  the  subject,  which  cannot  be  done  without  consent  of 
Parliament  ;(s)  so,  generally,  no  new  office  can  be  erected  for  the  benefit  of 
a  private  man  except  by  Parliament,  for  officers  are  chosen  by  law  or  pre- 
scription, and  the  law  or  custom  is  changed  only  by  Parliament, (f)  there- 
fore, an  office  granted  by  letters-patent  for  the  sole  making  of  bills,  informa- 
tions, and  letters  missive  in  the  council  of  York,  was  held  unreasonable  and 

(A-)  Bac.  Abr.  tit.  Offices  (B).  (l)  Anst.  624. 

(;/*)  4  last.  267.  (n)  Rcynell's  case,  9  Co.  97;  W.  Jo.  109  ;  Dav.  55. 

(o)  Young  V.  Fowler,  Cro.  Car.  555.  (/))  2  Inst.  32.  456. 

(9)  Com,  Dig-,  tit.  Office ;  Bac.  Abr.  tit.  Office  ;(B.)  2  Comm.  36. 

(r)  Dy.  176 ;  Plow.  381 ;  2  Inst.  425,  540 ;  2  Roll.  Abr.  152  ;  1  Roll.  Rep.  206 ;  Show. 
219.  (s)  2  Comm.  36  ;  2  Inst.  540. 

it)  Chute's  case,  12  Co.  116. 


OFFICES. 


307 


void;(?<)  so,  no  new  powers  or  privileges  can  be  annexed  to  any  office 
already  in  being,  but  they  must  be  executed  according  to  the  rules  pre- 
scribed and  established  by  law,  therefore,  although  the  queen  may  grant  the 
office  of  sheritTto  hold  during  pleasure,  yet  she  cannot  abridge  his  authority 
while  in  office  ;(i')  and  it  has  been  held,  that,  in  the  constitution  of  a  new 
office,  it  is  not  necessary  that  an  annual  or  casual  fee  should  be  annexed  to 
such  office. (a:) 

535.  The  queen,  it  seems,  cannot  grant  to  any  person  to  hold  a  court  of 
equity,  although  she  may  grant  tenere  placita,  for  the  dispensation  of  equity 
is  a  special  trust,  not  to  be  committed  to  any  except  her  Chancellor.(?/)  It 
is  said,  however,  that  courts  of  equity  may  be  holden  by  prescription, (^r)  but 
this  has  been  disputed,  see  Bac.  Abr.  tit.  Office,  (L.) 

It  is  also  said,  that  counties  palatine,  to  which  courts  of  equity  have  been 
considered  incident,  may  be  created  by  the  king  alone  without  the  aid  of 
Parliament,  but  the  weight  of  authority  appears  to  be  against  this  position. 


*lii.  ^rant  cf  mi  (JDfficc. 


[*435] 


§  536.  What  grantable  in  tlie  ancient  Form. 

537.  Grantable  by  the  Queen  Dowager  or 

Queen  Consort. 

538.  By  the  principal  Officer. 

539.  Appointments  by  tlie  Judges. 

540.  Appointments  by  Ecclesiastical  Per- 

sons. 

541.  Since  the  1  El.  c.  19. 

542.  Such  Grants   to  be   made   as   they 

were  anciently. 

543.  May  be  made  for  two  or  three  Lives. 


§  544.  Grants  in  Reversion,  when  good. 

545.  Cannot  be  granted  separately,  when. 

546.  Assignment  of  Offices. 

547.  Offices  of  Inheritance. 

548.  Offices  for  Life. 

549.  Cases  of  Life  Estates. 

550.  Stewardship  of  a  Manor  Court. 

551.  Grants  for  Years. 

552.  Grants  at  Will. 

553.  When  not  grantable  in  Reversion. 


The  grant  of  an  office  comprehends — 

1.  The  form  of  the  grant. 

2.  By  whom  grantable. 

3.  For  what  period  grantable. 

1.  Form  of  the  Grant. 

§  536.  Ancient  offices  cannot  be  granted  in  other  manner  or  form  than  is 
usual,  unless  the  form  be  altered  by  Parliament,  as  creating  by  writ,  where 
before  it  was  created  by  statute,(«)  or  for  life,  where  always  before  it  was 
granted  at  will  only  ;(/;)  so,  the  grant  of  an  officeioui  cumfn^l'is  pertinent\ 
does  not  grant  any  fees  if  it  be  not  an  office  by  prescription  ;(c)  so,  grant  of 
an  office  to  a  bishop  for  life,  is  not  a  grant  to  his  successors,  for  he  takes  the 
office  in  his  natural,  not  his  political  capacity,  and  therefore  the  grant  over 

(u)  Mounson  v.  Lyster,  W.  Jo.  231. 

{v)  Mitton's  case,  4  Co.  33 ;  see  also  2  Inst.  540 ;  4  Inst.  200 ;  Moor,  808  ;  2  Sid.  141 ; 
Mounson  v.  Lyster,  sup.  {x)  Moor,  809.  {y)  Hob.  63.  (2)  4  Inst.  87. 

(u)  4  Inst.  75.  (6)  Id.  87.  (c)  W.  Jo.  281. 


308  crabb's   law   of  real  property. 

to  his  successors  is  void.(rf)  In  the  grant  of  the  mastership  of  an  hospital, 
words  of  nomination  only  are  sufficient,  for  he  shall  be  in  by  the  original 
constitution  upon  the  foundation. (e) 

r*436]  *2.  By  whom  Grants  of  Office  may  he  made. 

537.  Although  the  nomination  of  all  offices  was  originally  in  the 
Crown,  yet  there  may  be  a  power  of  granting  in  a  queen  dowager,  or 
queen  consort,  or  other  subject;  and  as  between  a  queen  dowager  and  a 
queen  consort  it  is  laid  down  in  Atkins  v.  Montague, (/)  "That  though  here 
the  question  is  touching  the  interest  of  a  queen  dowager  in  the  patronage, 
when  there  is  no  queen  consort,  yet  it  seemed  to  him  that  if  there  be  a 
queen  dowager  and  a  queen  consort  both  at  the  time  of  the  voidance  of 
the  hospital,  the  queen  dowager  shall  present.  If  the  dowager's  grant  be 
good  when  there  is  a  queen  consort,  it  is  much  more  so  when  there  is 
none."(^) 

538.  Where  one  office  is  incident  to  another,  such  incident  office  is  regu- 
larly grantable  by  him  who  hath  the  principal  office  ;  thus,  the  office  of 
county  clerk  being  incident  to  the  office  of  sherff",(/i)  and  chamberlain  of  the 
Glueen's  Bench  Prison  (now  the  Queen's  Prison,  5  &  6  V.  c.  22,  see  Dig. 
P.  iii.  tit.  Prisons)  incident  to  the  office  of  marshal,(i)  and  exigenter  of  the 
counties  incident  to  the  office  of  Chief  Justice  of  the  Common  Pleas,(Z;) 
neither  of  these  offices  can  be  granted  by  any  other  than  the  principal ; 
therefore,  a  grant  of  the  office  of  marshal,  with  a  reservation  of  the  office  of 
chamberlain,  was  held  void ;(/)  so,  the  grant  of  the  office  of  exigenter  by 
the  king,  even  during  a  vacancy  of  the  chief  justiceship,  was  held  void,  and 
by  reason  of  prescription  and  usage. (m) 

539.  So,  the  judges  of  the  courts  have   a  right   to  appoint  their  own 
-,  officers,  as  well  by  the  common  law  as  by  statute,  *(13  E.  1,  c.  30, 

L  -^  I  W.  &  M.  c.  21);  therefore,  it  became  incident  to  the  office  of 
Lord  Keeper  to  appoint  the  ciistos  rolulorum,  and  to  the  office  of  custos  the 
appointment  of  the  clerk  of  the  peace  became  incident  ;(n)  and  so  the  judges 
of  the  courts  generally  have  the  appointment  of  their  own  officers,  it  having 
been  thought  fit  that  they  should,  have  the  power  of  appointing  those  in 
whom  they  can  confide. (o) 

540.  Bishops,  and  other  ecclesiastical  persons,  may  also  grant  offices,  not 
only  during  their  lives,  but  also  in  many  cases  so  as  to  bind  the  successor, 
as  where  the  office  is  ancient  and  of  necessity,  and  cannot  be  exercised  by 
the  bishop  in  person,  it  may  be  granted  so  as  to  bind  the  successor,(7;)  with 
the  accustomed  fees  for  exercising  it;(/))  and  it  has  been  said  that  where 

{d)  Moor,  809.  (e)  Atkins  v.  Montague,  Ca.  in  Chan.  215» 

(/)  Ca.  ill  Chan.  215.  {g)  Per  Hale,  C.  J.,  lb.  (/<)  Mitton's  case,  4  Co.  32. 

(i)  1  Leon.  330.  (A)  Dy.  175  a.,  pi.  25  ;  And.  152. 

(/)  Snow  V.  Firebrass,  2  Salk.  439.  (w)  Skro^r^es  v.  Coleshll,  Dy.  175  a. 

(n)  Harcourt  v.  Fox,  4  Mod.  173.  (o)  2  Inst.  425;  see  also  Dig.  P.  i.  iii.  tit.  Office. 

(p)  Bishop  of  Sarum's  case,  10  Co.  58. 


OFFICES.  309 

the  office  is  ancient,  the  grant  of  such  office  and  fee,  with  the  addition  of  a 
new  fee,  is  good;(7J)  but  this  point  is  disputed, (7) 

So,  akhough  it  be  a  new  office,  yet  if  it  be  necessary,  and  the  fee  rea- 
sonable, it  will  be  binding  on  the  successor. (;>) 

541.  Notwithstanding  the  stress  which  is  laid  in  most  of  the  old  cases 
(see  Bac.  Abr.  tit.  Offices,  (D)  )  on  the  necessity  of  the  office,  to  make  it 
binding  on  the  successor,  this  is  now  held  to  be  immaterial,  Trelawny  v. 
Winton  (Bishop)  (r),  where  it  was  held,  not  only  an  office  and  fee  which 
existed  prior  to  the  statute  of  Elizabeth  (1  El.  c.  19)  are  not  within  the 
restraint  of  that  statute,  but  that  the  necessity  and  utility  of  an  office  is  not 
more  material  since  than  it  was  before  the  statute  ;(r)  but  the  ancient  mode 
of  granting  the  office  must  be  pursued,  and  therefore  if  an  office  have  been 
anciently  granted  to  one,  a  grant  to  two  for  their  lives  will  not  bind  the  suc- 
cessor ;(s)  so,  if  the  office  have  been  anciently  granted  to  one  with  an 
ancient  fee,  and  ^afterwards  a  grant  be  made  to  another  in  rever-  (-^^gg-i 
sion,  this  will  not  be  binding  on  the  successor,  because  this  might  L  J 
tend  to  the  tying  up  the  successor's  hands  in  a  most  unreasonable 
manner.  (^) 

542.  But  as  ancient  offices  are  not  within  the  32  H.  8,  c.  28,  nor  the  1 
El.  c.  19,  and  the  13  El.  c.  10,  (see  Dig.  P.  iii.  tit.  Leases  (Ecclesiastical), 
but  remain  entirely  as  at  common  law,  they  must,  to  bind  the  successors,  be 
confirmed  in  the  same  manner  as  all  other  grants  ot  alienations  by  ecclesi- 
astical persons  must  then  have  been  ;{t)  and  although  a  bishopric,  deanery, 
or  the  like,  were  founded  but  of  late  times,  yet  the  grant  of  such  offices  as 
are  necessary,  and  cannot  be  exercised  by  the  bishop  or  dean  in  person, 
may  be  allowed,  together  with  a  reasonable  fee  for  the  exercise  thereof,  (the 
reasonableness  whereof  the  Court  is  to  judge  ;)  for  such  grants  cannot  be 
said  to  tend  to  the  impoverishment  of  the  successor,  but  rather  for  his  benefit, 
by  providing  officers  fit  and  qualified  to  take  care  of  the  revenues,  &c.,  and 
are  not  therefore  within  the  restraint  of  the  statute  of  Elizabeth. (i;) 

543.  Bishops  may,  however,  grant  offices  for  one,  two,  or  three  lives,  if 
so  they  did  before  the  1  EL,  otherwise  not,  Ridley  v.  Powne]l,(.r)  and  in 
this  case  several  differences  were  taken  and  agreed  to  by  the  Court,  ffi-st. 
That  the  bishop  of  a  new  bishopric  may  grant  offices  of  necessity ;  secondly, 
If  an  office  hath  been  usually  granted  by  the  bishop  of  a  new  bishopric  for 
three  lives,  with  the  consent  or  confirmation  of  the  dean  and  chapter  before 
the  1  El.  c.  19,  it  may  be  now  granted  accordingly  ;  thirdly,  Be  the  bishop- 
ric new  or  old,  if  it  was  not  so  granted,  but- granted  always  before  1  El.  for 
one  or  two  lives,  it  cannot  be  granted  for  three  hves  ;  fourthly,  If  it  was 

(p)  Bishop  of  Sarum's  case,  IC  Co.  58. 
\q)  Gee  v.  Friendland,  Cro.  Car.  47  ;  see  also  Ley,  71. 

(r)  1  Burr.  219.  ^  .  ^,     ^ 

(s)  Bishop  of  Sarum's  case,  sup.;  see  also  Curie's  11  Co.  4 ;  Gee  v.  Fnedland,  siip._ 
It)  Bishop  of  Sarum's  case,  10  Co.  58;  see  also  Curio's  case,  11  Co.  4;  Gee  v.  Fried- 
land,  Cro.  Car.  47. 

(m)  lb.;  and  see  also  Lev,  78;  2  Brownl.  137. 

Ix)  2  Lev.  3G ;  S.  C.  noni.  Ridley  v.  Founell,  3  Keb.  472. 


310  crabb'slaw    of    real    property. 

r*4^Ql  a^^^'^^i  before  the  1  El,  for  *three  lives,  and  after  the  statute  but 
L  -^  for  one  hfe,  yet  this  shall  not  abridge  the  power  of  the  bishop,  but  he 
may  grant  it  for  three  lives, (^)  see  also  Cro.  Car.  258,  March,  38,  W.  Jo. 
31],  wiiere  it  was  held  that  such  grants  before  Ehzabeth  were  evidence  of 
their  having  been  so  granted. 

544.  Although  grants  of  offices  in  reversion  are  held  not  to  be  good,(;r) 
yet  this  must  be  vmderstood  of  such  offices  only  as  have  been  ahvaj-s  granted 
in  possession ;  where  on  the  other  hand  they  have  been  usually  granted  as 
well  in  reversion  as  in  possession,  a  grant  of  such  office  for  hfe,  when  by 
the  death  or  surrender  of  the  present  olficer  it  shall  become  void,  will  be 
good  and  bind  the  successor,  for  such  provision  when  duly  confirmed  may 
be  sanctioned  by  custom  and  usage. (o) 

545.  Offices  which  are  incident  to  others  cannot  be  separated,  so  as  for 
one  to  be  granted  and  the  other  resexve&.[b)  Also,  what  is  incident  to  an 
office  will  pass  with  it ;  if,  thereibre,  a  house  or  land  belong  to  an  office,  it 
will  pass  by  the  grant  of  the  office,  without  being  expressly  named. (c) 

546.  An  office  in  fee  granted  by  a  subject  generally  may  it  seems  be 
assigned, (rf)  and  though  it  be  an  office  of  trust  it  may  be  granted  to  heirs 
and  assigns  ;(e)  so,  an  office  granted  to  one  and  his  assigns  may  be 
assigned ;(/)  but  an  office  of  trust  cannot  be  assigned,  without  the  assent 
of  him  who  granted  the' office, (o-)  or  if  the  patent  does  not  mention  deputy 
or  assigns,  though  it  be  granted  in  fee  ;(/i)  and  it  is  said  that  the  office  of 
r*di(M  C'^rver  could  not  be  assigned,(/i)*  nor  the  office  of  forester  ;(i^  as  to 
L         -^  executing  an  office  by  deputy,  see  post,  §  563. 

3.  For  icliat  Period  an  Office  may  be  granted. 

547.  Offices  with  respect  to  their  duration  are  distinguished  according 
as  the}'  are  granted  to  a  man  and  his  heirs,  or  to  a  man  for  life,  for  years, 
or  at  will. 

Those  offices  only  are  allowed  to  descend  as  inheritances  where  no  incon- 
venience can  ensue  therefrom  to  the  public,  as  the  office  of  Earl  Marshal  of 
England,  the  offices  of  park-keeper,  forester,  gaoler,  sheriff',  &c.  ;(A;)  but, 
where  a  person  has  any  office  in  himself  and  his  heirs,  he.  may  grant  them 
to  one,  in  remainder  to  another  for  life,  for  omne  majus  continet  in  se  minits, 
for  as  they  are  grantable  in  fee,  so  they  may  be  granted  in  succession  to  one 
for  life  with  remainder  over. (/J 

(y)  Ridley  v.  Pownell,  2  Lev.  136;  S.  C.  nom.  Ridley  v.  FouneU,  3  Keb.  472. 

(«)  See  ante,  §  541. 

(a)  Young  v.  Stoell,  G?o.  Car.  279  ;  S.  C.  nom.  Young  v.  Stowel,  IMarch,  38  ;  see  also 
Young  V.  Fowler,  Cro.  Car.  555. 

(6)  Dy.  175  a;  And.  152.  (c)  1  Inst.  49,  a.;  Vaugli.  178. 

((/)   Earl  of  Shrewsbury's  case,  9  Co.  4S  ;  W.  Jo.  113;  Hardr.  425. 

(e)  W.  Jo.  113.  (/)  Hob.  170  ;  W.  Jo.  113.  {g)  11  E.  4.  1 ;  W.  Jo.  121. 

(A)  lb. ;  sed.  dub.,  3  Mod.  151.  (J)  4  Inst.  315. 

(A)  Dy.  285  ;  Plow.  3 ;  2  Inst.  392  ;  2  Roll.  Abr.  153. 

(I)  Plowden,  379,  381 ;  Earl  of  Shrewsbury's  case,  9  Co.  48 ;  Sir  George  Reynell's 
case,  Id.  97. 


N  OFFICES.  311 

548.  At  common  law  all  officers  of  justice  had  a  life  estate,  and  could  not 
be  removed  but  for  misconduct,  and  it  was  the  same  of  the  office  of  clerk  of 
the  Crown,  both  in  the  dueen's  Bench  and  in  Chancery,  and  the  clerks  of 
the  Exchequer,  and  the  filacer  in  the  Common  Pleas,  "  In  which  respect 
(sa3's  Lord  Coke)  the  wisdom  and  policy  of  the  law  was  very  great,  because, 
when  men  held  their  offices  for  life,  it  was  an  encouragement  to  the  faithful 
execution  of  their  duty  ;  it  was  then,  also,  that  they  endeavoured  to  acquire 
knowledge  and  experience  in  their  employments,  having  a  durable  and  fixed 
estate  therein,  and  not  liable  to  be  displaced  at  the  pleasure  of  those  who 
put  them  in."(m)  For  this  reason  it  is,  that  the  law  construes  the  grants 
of  offices  favourably  for  the  grantee  ;  therefore,  if  an  office  be  granted  to  a 
man  to  have  and  enjoy  so  long  as  he  shall  behave  himself  well  in  it,  the 
grantee  has  an  estate  for  life,  *for  as  nothing  but  his  misbehaviour  p*^^,-! 
can  determine  his  interest,  no  man  can  prefix  a  shorter  period  than  L  -■ 
his  life,  since  it  must  be  his  own  act  alone  (which  the  law  does  not  presume 
to  foresee)  which  can  make  his  estate  of  shorter  continuance  ;(w)  so,  if  the 
office  be  granted  to  a  man  qxiamdiu  se  bene  gesserit  tantum,  his  estate  will 
not  be  the  less  for  the  word  tantum.iii^ 

549.  Though  by  the  37  H.  8,  c.  1,  s.  3,  and  1  W.  &  M.  s.  1,  c.  21,  it  is 

provided,  that  the  cuslos  rotulonan  shall  appoint  and  nominate  the  clerk  of 
the  peace,  who  may  execute  it  by  himself  or  deput}^  for  so  long  time  only 
as  he  shall  demean  himself  well,  yet  it  has  been  held  that  the  clerk  has  an 
office  for  life,  and  that  it  does  not  determine  with  the  office  of  the  custos;[o) 
and  so,  the  judges  of  the  several  courts  at  Westminster  (who  formerly  held 
their  places  durante  bene  placito,\{p'^  now,  since  the  12  W.  3,  which  pro- 
vides that  their  commissions  shall  be  qiiamdiu  se  bene  gesserent,  hold  their 
places  for  life,  and  can  be  removed  only  upon  the  address  of  both  Houses 
of  Parliament ;  so,  before  the  7  &  8  W.  3,  c.  27,  the  patents  of  the  judges, 
sheriffs,  and  commissioners  of  oyer  and  terminer,  &c.,  were  determined  by 
the  demise  of  the  Crown,  but  by  that  act,  amended  by  the  1  Anne,  c.  1,  all 
patent  officers  are  continued  for  six  months  after  the  demise  of  the  Crown, 
and  by  the  1  G.  3,  c.  23,  it  is  declared  that  the  offices  of  the  judges  shall 
in  nowise  be  affected  by  such  demise. 

550.  The  appointment  of  the  steward  of  a  manor  court  beyond  the  life  of 
the  grantor,  was  admitted  by  an  early  case  to  be  good;(«j')  but  it  was  not 
settled  that  such  an  appointment  by  a  subject  was  equally  good.  In  Bartlett 
V.  Downs, ()•)  it  was  held,  that  the  lord  of  a  manor  may,  by  *deed  p^i^oT 
grant  the  stewardship  of  the  manor  and  of  the  courts  thereto  belong-  L  -• 
ing,  for  the  life  of  the  grantee ;  in  which  case  the  doctrine  as  laid  down  by 
Lord  Coke(s)  is  recognized,  where  he  says,  "If  a  man  grant  to  another  the 
office  of  the  stewardship  of  the  courts  of  his  manor,  with  a  certain  fee,  the 
grantor  cannot  discharge  him  of  his  service  and  attendance,  because  he  hath 
profits  which  he  should  lose  if  he  were  discharged  of  his  office  ;"(s)  but  it 

(m)  1  Inst.  49. 

(rj)  1  Inst.  42;  1  Roll.  Abr.  614  ;  Shaw.  V.  C.  IGl. 

(o)  Harcourt  v.  Fox,  4  Mod.  167.  (/))  4  Inst.  74,  114. 

(q)  Earl  of  Shrewsbury's  case,  9  Co.  48.  (r)  3  B.  &  C.  61G. 

(s)  1  Inst.  233. 


313  crabb's    law   of   real   property. 

appears  that  where  a  plaintiff  does  not  allege  that  there  is  any  profit  belong- 
ing to  his  office,  he  may  be  discharged  by  the  vendee  of  a  manor  ;(f)  so,  to 
all  grants  for  life  of  such  an  office  as  the  parkership  of  a  park  and  the  like, 
a  condition  in  law  is  annexed,  that  he  should  do  what  appertains  to  such 
office  to  be  done.(w) 

551.  An  office  of  trust  and  confidence,  which  concerns  the  administration 
of  justice,  such  as  the  keepership  of  a  prison,  cannot  be  granted  for  years, 
for  if  it  were  granted  for  years,  it  would  go  to  executors,  which  would  be 
injurious  to  the  public  ;(:c)  for  the  same  reason  it  was  held,  that  the  office 
of  remembrancer  of  the  Exchequer,  and  other  offices  in  the  several  courts  of 
justice,  could  not  be  granted  for  j^ears  ;(a;)  such  offices,  however,  as  do  not 
concern  the  administration  of  justice,  but  only  require  skill  and  diligence, 
may  be  granted  for  years,  because  they  may  be  executed  by  deputy  without 
inconvenience,  therefore,  the  office  of  garbler  of  the  spices  (when  it  existed) 
was  adjudged  to  be  a  good  grant  or  appointment  for  years,  within  the  intent 
of  1  J.  1,  c.  19;(2/)  so,  a  grant  for  years  of  the  office  of  registrar  of  policies 
of  assurance  in  London  was  adjudged  to  be  good  ;(z)  so,  grants  for  years  of 
other  offices  concerning  trade  had  in  early  cases  been  adjudged  to  be 
r-^jjn-]  good;(«)  *but  where  a  grant  for  years  was  made  of  the  stewardship 
L  -'  of  a  court-leot  and  court-baron,  this  was  held  void  as  to  the  leet,  being 
a  judicial  office,  and  good  as  to  the  court-baron. (i) 

552.  The  office  of  sheriff  may  be  granted  by  the  queen  durante  bene 
placifo,  (but  see  24  G.  2,  c.  48,  Dig.  p.  iii.  tit.  Sheriffs,)  but  although  she 
might  determine  the  office  at  her  pleasure,  yet  she  could  not  determine  it  for 
part  as  for  a  particular  vill,  «fcc.,nor  can  she  abridge  the  sheriff  of  any  thing 
incident  or  appurtenant  to  his  office  ;(c)  so,  a  sheriff  may  grant  to  his  under- 
sheriff  to  hold  at  will  only,  for,  being  his  deputy,  he  must,  according  to  the 
nature  of  a  deputation,  be  removable  at  pleasure. (rf) 

If  an  oflice  be  granted  durante  bene  placifo,  it  shall  not  be  determined  at 
the  will  of  the  party,  but  only  at  the  Avill  of  the  queen,  and,  therefore,  the 
party  may  surrender,  and  if  forfeited,  it  shall  be  found  by  inquisition,  and 
till  a  surrender  or  forfeiture  he  continues  officer.(e) 

553.  A  judicial  office  cannot  be  granted  in  reversion,  for  though  the 
grantee  be  ever  so  fit  a  person  at  the  time  of  the  grant,  he  may  become  unfit 
when  it  takes  effect ;(_/")  and  such  grant  of  a  stewardship  in  remainder  or 
reversion,  or  after  death,  was  held  void  in  Stanton  and  Green's  case  ;(g")  and 
so  it  was  adjudged  in  Scambler  v.  Waters. (/t) 

So,  on  office  partly  judicial  and  partly  ministerial,  as  the  office  of  auditor 
of  the  Court  of  Wards  was,  cannot  be  granted  in  reversion  ;[i)  but  such 
grant  has  always  been  holden  good  when  there  is  usage  to  support  it;(A')  so, 

(0  Harvey  V.  Ncwlyn,  Cro.  El.  859. 

(?/)  Litt.,  sect.  378.  (x)  Sir  George  RcyncU's  case,  9  Co.  97. 

(y)  Jones  v.  Clerk,  Hard.  46,  353.  (s)  Dy.  303  ;  Hob.  146. 

(a)  1  H.  7  ;  18  H.  8.  (h)  Howard  v.  Wood,  2  Lev.  245. 

(c)  4  Co.  33.  (d)  Hob.  13  ;  Noy,  55.  (e)  2  Salk.  466. 

(  f)  Curie's  case,  11  Co.  4;  1  Inst.  3.  (?)  Cited  10  Co.  61 ;  Dy.  80,  n.  (58.) 

(h)  Cro.  El.  636.  (0  Curie's  case,  sup. 

(i)  W.  Jo.  311 ;  Cro.  Car.  49 ;  Hard.  357. 


OFFICES.  31* 

in  case  of  the  queen,  for  she  has  a  general  power  to  grant  office^  in  rever- 
sion without  anjf  usage  ;(Z)  so,  tlie  queen  *inay  grant  an  office  to  r-^^A^j-^ 
commence  in  fiduro,  or  upon  a  contingency,  which  estate  it  is  said  L  -I 
shall  arise  out  of  the  inheritance  she  has  in  the  office  itself.(wi)  As  to  the 
persons  who  may  or  may  not  hold  an  office,  see  infra,  §  554,  and  for  what 
estate  it  may  be  held,  see  infra,  §  578. 


IV.  m^\\Q  mvLP  lioltf  <S)fffcc.s. 


§  554.     Persons     generally    may     iiold 
Offices. 
555.     Persons  must  be  able  to  execute 
the  Office. 


§  556.     What   Offices   may  be   held   by 
Persons  under  Disabilities. 
Infants. 
557.     Women. 


558.     Qualification  for  Office, 


§  554.  The  grant  of  an  office  generally  may  be  made  to  any  person 
whom  the  queen  pleases,  for  the  queen  has  an  interest  in  her  subject,  and 
a  right  to  his  services  ;(?i)  and  a  charter  exempting  persons  from  serving 
offices  within  the  cinque  ports,  would  not  exempt  them  from  serving  the 
office  of  sherifr,(o)  and  formerly  no  person  was  excused  for  his  neglect  to 
qualify  himself ;(;;)  but  the  Indemnity  Act  which  passes  annually,  to  in- 
demnify persons  who  have  omitted  to  comply  with  the  requisitions  of  the  13 
C.  2,  St.  2,  c.  1,  and  25  C.  2,  c.  2,  and  other  acts,  (see  Dig.  p.  i.  tit.  Oaths,) 
has  modified  the  statutory  provisions  on  that  subject. 

555.  None  can  legally  hold  an  offxe,  but  one  who  is  of  ability  to  execute 
it.  If,  therefore,  an  office  which  concerns  the  administration  of  justice,  the 
queen's  revenue,  or  the  public  good,  be  granted  by  the  queen  or  a  subject 
to  one  who  is  inexpert  and  incapable  of  executing  it,  the  grant  Avill  be  abso- 
lutely void,  and  the  grantee  be  disabled  by  law  *from  holding  it,  for  p^^^g-i 
none  but  persons  of  sufficient  skill  and  ability  are  permitted  to  serve  L 

the  queen  and  her  people. (^) 

556,  Upon  this  principle  persons  under  disabilities,  as  infants  and 
women,  can  hold  only  certain  offices  ;  a  ministerial  office  may  be  granted 
to  an  infant  exercemr  per  se  vel  deputahim  sia(m,{r)  as  the  office  of  regis- 
ter of  a  bishop  ;(s)  and  it  is  said,  so  the  grant  of  the  office  in  reversion  after 
the  death  of  tenant  for  life,  to  an  infant  of  the  age  of  eleven  years,  exercen- 
dum  per  se  vel  deputatum  suum,  (as  the  usual  grants  are),  is  good,  not- 
withstanding the  infancy,  Young  v.  Fowler  ;(f)  and  in  that  case,  all  the 

(/)  Dy.  80,  259  ;  March,  42  ;  R.  v.  Kemp,  4  Jlod.  279. 
(m)  R.  V.  Kemp,  4  Mod.  280. 

(n^  1  Salk.  168,  citing  Eaii  of  Siircwsbury's  case,  9  Co.  46.  (o)  Sav.  1."?. 

(»)  1  Salk.  168. 

(7)  Dy.  150;  Hob.  148;  1  Inst.  3,  b.;  2  Inst.  32,456;  Godb.  301  ;  Cro.  Car.  57 ;  Dr. 
SuUon's  case,  Noy,  91 ;  Glanvil's  case,  Palm.  450;  Anstr.  483.  616. 

(;•)  2  Roll.  Abr.  155.  (s)  Young  v.  Stocll,  Cro.  Car.  279  ;  S.  C,  W.  Jo.  310. 

(()  Cro.  Car.  556, 


314 


CRABB  S  LAW  OF  REAL  PROPERTY. 


justices  h^ld  that  it  was  good,  notwithstanding  the  case  cited  in  Co.  Lit.  3, 
and  there  said  to  be  resolved, («)  that  the  grant  of  an  under-stewardship  in 
|)ossession  or  reversion  to  an  infant  is  void,  because  he  is  incapable  thereof, 
not  having  knowledge  to  execute  it  pro  commodo  regis.  But  this  case  was 
denied,  unless  it  be  with  this  ditference,  where  it  is  granted  with  such  a 
clause  to  exercise  it  per  se  vel  deputatum,  and  when  he  is  of  such  tender 
age,  that  he  cannot  by  intendment  execute  it  by  himself,  as  being  an  infant 
of  three  or  four  years  of  asfe,  who  hath  not  discretion  to  execute  it ;  but 
when  there  is  a  clause  to  execute  it  by  deputy,  it  is  good,  for  he  may 
appoint  a  sufficient  deputy,  and  if  he  do  not  elect  such,  it  is  a  forfeiture. (x) 
So  it  seems  that  an  infant  may  be  a  mayor. (?/) 

557.  So,  the  grant  of  an  office  of  government  to  a  woman,  which  may  be 
ra.i.r*"l  ^^^rcised  by  a  substitute  or  deputy,  will  be  *good,  as  a  woman  may 
L  -^  be  made  regent  of  a  kingdom ;(z)  so,  an  office  of  inheritance  may 
descend  to  a  woman,  and  by  consequence  may  be  granted  to  her;(r)  so,  a 
woman  may  be  a  gaoler,(o)  or  a  commissioner  of  sewers  ;(6)  so,  she  may 
have  the  custody  of  a  castle, (c)  or  be  a  forester, ((f)  or  sexton  of  a  parish, 
and  may  vote  in  the  election  of  one  ;(e)  so,  a  woman  may  be  appointed  an 
overseer  of  the  poor.  (^) 

558.  To  the  holding  of  some  offices  is  annexed  a  qualification  by  estate, 
as  in  the  case  of  justices,  of  trustees  of  turnpike  roads,  and  commissioners 
of  sewers;  see  Dig.  P.  i.  iii.  tit.  Justices  of  the  Peace,  P.  iii.  tit.  High- 
ways (Turnpikes),  and  P.  iii.  tit.  Sewers.  , 

Before  the  9  G.  4,  c.  17,  the  taking  the  sacrament  was  indispensably 
necessary  before  admission  to  office,  and  the  taking  the  oaths  of  .allegiance 
and  supremacy  is  in  most  cases  required  of  all  persons  for  their  qualification 
to  hold  office,  but  declarations  and  affirmations  have  been  substituted  in 
favour  of  Quakers  and  some  other  dissenters,  and  a  particular  oath  as  a  sub- 
stitute for  the  oath  of  supremacy  and  abjuration  to  be  taken  by  Roman 
Catholics;  see  Dig.  P.  i.  tit.  Dissenters,  P.  i.  iii.  tit.  Gluakers,  Roman 
Catholics. 


[*447] 


V.  Execution  of  (Dfft'ccs. 


560.  Offices  that  are  incompatible. 

561.  Ministerial    OtSces  executed   by 

several. 
Not  judicial  Offices. 
Exception. 
563.  Survivorship  of  Office. 

563.  What  offices  may  be  exercised  by 

Deputy. 
Offices  in  Fee. 

564.  Offices  not  requiring  Skill. 


564.  Ministerial  Offices. 

565.  Judicial  Offices  cannot  be  exe- 

cuted  by  Deputy. 

566.  Powers  of  a  Deputy. 

567.  No  Deputation  witliout  Deed. 

568.  Principal   answerable   for   De- 

puty. 

569.  Exception  as  to  the  Responsi- 

bility of  Superior. 


(u)  40  &  41  El. ;  Scambler  v.  Walter,  Cro.  El.  637. 

(x)  See  also  39  H.  6,  pi.  32  ;  9  Ed.  4,  pi.  5,  '26  ;  11  Ed.  4,  pi.  1 ;  1  H.  7,  23 ;  Dy.  150 ; 
Hob.  142;  1  Inst.  3,  and  Hargrave's  note  (4)  Co.  Cop.  125;  Cowp.  222. 
(y)  18  Ed.  3,  pi.  3 ;  27  H.  6.  12 ;  1  Inst.  43,  107,  234;  but  see  Cowp.  222. 
(s)  Com.  Disr.  tit.  Officer,  (B),  citing  Callis  on  Sewers.  201.  (a)  2  Inst  382. 

(6)  Callis  on  Sewers.  202.  (c)  Cro.  Jac.  18.  (r/)  4  Inst.  311. 

(e)  Olive  v.  Ingram,  2  Str.  1114.  ig)  R.  v.  Stubbs,  2  T.  R.  395. 


OFFICES.  315 

§  559.  The  execution  of  an  office  is  to  be  considered  as  to — 

1.  The  execution  of  several  offices  by  one  person. 

2.  The  execution  of  one  office  by  several  persons. 

3.  The  execution  of  office  by  deputy. 

1.   Tlie,  Execution  of  several  Offices  hy  one  Person. 

560.  Offices  are  said  to  be  incompatible  and  inconsistent  when,  from  the 
multiplicity  of  duties  to  be  discharged,  they  cannot  be  executed  with  care 
and  ability. (A)  Hence  it  is  that  the  queen,  though  she  can  grant  an  office, 
cannot  execute  it  ;(z)  so,  the  Chief  Justice  of  the  Court  of  Queen's  Bench 
cannot  be  prothonolary  or  clerk  of  the  papers,  though  he  has  the  disposal 
of  those  offices  ;  (A;)  so,  a  coroner  made  sheriff,  ceases  to  be  coroner;  or,  a 
parson  made  bishop,  to  be  a  parson  ;(A;)  or,  a  judge  of  the  Court  of  Common 
Pleas,  made  a  judge  of  the  Court  of  dueen's  Bench  ;(/)  or,  a  remembrancer 
of  the  Exchequer,  made  a  baron  of  the  Exchequer  ;(7n)  so,  the  offices  of 
mayor  and  town-clerk  have  been  held  incompatible  because  of  the  subordi- 
nation, for  the  duty  of  the  town-clerk  is  to  attend  on  the  mayor  ;(n)  and  it 
is  now  settled,  that,  when  two  offices  are  incompatible,  the  subsequent 
*acceptance  of  one  vacates  the  other  ;(o)  but,  the  Chief  Justice  of  j-j^^iQ-i 
the  Common  Pleas  being  made  keeper  of  the  Great  Seal,  continues  L  -I 
chief  justice  •,{p\  so,  by  custom,  the  same  person  may  be  a  judge  and  an 
officer  to  execute  process,  for  he  acts  in  different  respects,  as  where  bailiffs, 
or  mayor  and  bailiffs,  are  judges  in  the  court  of  a  borough,  they  may  also 
be  officers  to  execute  the  process  of  the  same  court  ;(*/)  so,  the  bailiff" of  a 
manor  may  be  the  steAvard  of  a  manor  ;(r)  so,  a  mayor,  who  is  judge  of  the 
court,  may  also  be  a  gaoler,  (s) 

2.  Execution  of  one  Office  hy  several  Persons. 

561.  Ministerial  offices  may  be  granted  to  two  or  more  persons,  as  the 
office  of  clerk  of  the  Crown  •,{t)  so,  where  the  office  of  commissary  was 
usually  granted  to  two  persons  before  the  1  El.  c.  19.  the  bishop  may  con- 
tinue to  grant  it  to  two  ;(?^)  but  ancient  offices  cannot  regularly  be  granted 
to  two,  nor  otherwise  than  they  usually  have  been  ;(x)  and  a  judicial  office, 
estabhshed  at  common  law,  cannot  be  granted  to  two  or  move,{y)  as  the 
office  of  chief  justice  or  other  judge  ;(z)  so  not  the  office  of  admiral,  for  it  is 
judicial ;(«)  so  not  the  office  of  prothonotary  in  C.  P.,  for  it  is  not  warranted 
by  usage, (o)  seel  seciis  as  to  the  prothonotary  in  the  Q,.  B.;(5)  but  an  office 
established  by  Act  of  Parliament,  though  it  be  in  part  judicial,  as  auditor  of 

(A)  1  Doujl.  398.  (J)  4  Inst.  100. 

(A-)  Verrior  v.  Sandwich  (^layor)  1  Sid.  305. 

(Z)  Dy.  139.  (m)  Id.  197.  (n)  R.  v,  Pergam,  2  Keb.  92. 

(0)  Milward  v.  Thatcher,  2  T.  R.  81. 

(p)  1  Sid.  338  ;  see  also  Dv- 159  ;  Cro.  Car.  600  ;  Poph.  28. 

(7)  Crane  v.  Holland,  Cro.  Car.  133;  S.  C.  nom.  Craine  v.  Holland,  W.  Jo.  193. 

(r)  Gvbson  v.  Searl,  Cro.  Jac.  1 78,  citing  29  H.  8. 

(s)  Gabriel  widow  v.  Clerk,  Cro.  El.  76.  (0  11  Co.  3  b ;  2  Roll.  Abr.  152. 

(u)  Jones  V.  Beau,  4  Mod.  17. 

(x)  Hare  and  Leisure,  Hob.  214 ;  4  Inst.  143  ;  Walker  v.  Lambe,  W.  Jo.  263. 

(y;  Jones  v.  Beau,  sup.  {z)  2  Roll.  Abr.  152.  (a)  4  Inst.  146.         {b)  Show.  289. 


316  crabb's   law   of   real   property. 

the  Court  of  Wards,  may  be  so  granted  ;(c)  so,  chancellor  of  a  bishop  where 
it  is  warranted  by  usage. (rf) 

^  *562.  If  a  grant  be  made  to  two  without  saying  the  survivor,  if 

L  J  one  die,  the  survivor  shall  not  have  it  ;(e)  but  if  the  queen  grants 
an  office  to  two  and  the  survivor,  and  afterwards  grants  to  A.  when  the 
office  vacare  contigerit,  the  grant  shall  not  take  effect,  though  it  be  granted 
in  reversion,  till  both  die,  for  during  the  life  of  either  the  office  is  not  entire- 
ly vacant.  (/) 

3.  Execution  of  Offices  by  Deputy,  or  othertvise. 

563.  As  to  this  point  there  are  some  offices  which  in  their  nature  and 
constitution  imply  a  right  of  exercising  them  by  deputy ;  some  which  in 
their  nature  cannot  be  so  exercised,  and  others  which  may  be  so  exercised 
if  the  power  be  annexed  to  the  grant,  otherwise  they  cannot  be  so  exercised. 

Of  the  first  description  are  offices  of  inheritance,  as  the  office  of  Earl 
Marshal  of  England,  forester,  park-keeper,  &c.,  which  may  be  exercised  by 
deputy  ;(g-)  so,  also,  the  office  of  high  constable  of  England  ;(/i)  so,  he  who 
holds  a  fee  by  personal  service  may  make  a  deputy,  for  the  estate  may 
descend  to  a  woman,  infant,  &c.,  Avho  may  be  incapable  of  doing  it  in  per- 
son ;(i)  and  if  parceners  cannot  agree  in  nominating  a  deputy,  Chancery 
will  direct  them  to  draw  lots  who  shall  nominate  first. (A) 

564.  Where  nothing  is  required  in  an  officer  but  superintendency,  he 
may  make  a  deputy, (/)  and  therefore  a  constable  may  make  a  deputy  ;(m) 
so,  every  ministerial  officer  may  make  a  deputy,  as  a  chamberlain  or  alder- 
man,(n)  unless  where  the  office  is  granted  to  be  executed  by  him  in  per- 
^._  -,  son,  *then  he  cannot  make  a  deputy ;(o)  so,  an  auditor  in  the 
L  -I  Exchequer ;(;))  (but  see  now  4  &  5  Wm.  4,  c.  17,  Dig.  P.  i.  tit. 
Courts  (Exchequer ;)  so  if  an  office  of  labour  of  small  regard  be  granted  to 
a  peer,  he,  in  respect  of  the  dignity  of  his  person,  may  make  a  deputy,  as 
if  a  peer  be  made  steward  of  a  court-baron,  parker,  &,Q,.[q) 

So,  a  sheriff,  though  made  by  the  queen's  letters-patent  may  make  a 
deputy  ;(r)  so,  a  bishop  on  his  creation  has  the  power  of  appointing  depu- 
ties ;(«)  and  the  office  of  clerk  of  the  outlawries  of  the  C.  P.,  which  belongs 
to  the  Attorney-General,  is  invariably  exercised  by  deputy  ;(/)  so,  generally, 
every  officer  who  may  assign  his  office  to  another  may  make  a  deputy, (?) 
sedsecus  as  to  the  marshal  of  the  King's  Bench  Prison,  (now  the  Queen's 
Prison,  see  Dig.  p.  iii.  tit.  Prison,)  who,  although  he  has  power  to  grant 
the  office  for  life,  yet  cannot  authorize  the  grantee  to  make  a  deputy. (rr) 

(c)  11  Co.  3.  (rf)  Jones  v.  Beau,  4  Mod.  18 ;  see  also  Show.  289. 

(c)  Jones  V.  Pugh,  2  Salk.  4G5.  (/)  Auditor  Curie's  case,  11  Co.  4. 

{g)  Plowd.  380  ;  Earl  of  Slirewsbury's  case,  9  Co.  48  ;  2  lust.  382. 
(A)  Keilw.  171  a.  (i)  2  Inst.  34. 

(A-)  Seymour  v.  Bennet,  2  Atk.  482.  (0  R.  Lentlial,  3  Mod.  150. 

(?»)  Phelps  V.  Winchcombe,  Moor,  845 ;  S.  C,  nom.  Phelpe  v.  Winscombe,  Roll.  Rep. 
274  ;  iee  also  1  Roll.  Abr.  591 ;  3  Bulstr.  78;  1  Lev.  233. 

(n)  1  Roll.  274.  (o)  R.  v.  Lcnthal,  3  Mod.  150.  (p)  4  Inst.  106. 

iq)  Earl  of  Slirewsbury's  case,  9  Co.  49.       (r)  Phelpe  v.  Winscombe,  Roll.  Rep.  274. 
/       (s)  2  Sid.  138.  (0  4  Inst.  101.  (x)  39  H.  6.  34;  2  Roll.  Abr.  154. 


OFFICES.  317 

565.  A  judicial  officer  cannot  as  a  rule  make  a  deputy,  as  the  Lord 
Chancellor,(«/)  or  a  justice  of  either  bench  ;(^)  so  high  steward  of  the  realm, 
for  he  is  a  judge  upon  the  trial  of  peers  ;(o)  so,  not  a  coroner,  nor  an 
escheator  ;(6)  yet  if  a  judicial  office  be  granted  teneniV  per  se  vel  dejnita- 
tum,  he  may  make  a  deputy,  as  the  recorder  of  London  ;(c)  so  where 
ancient  usage  allows  a  deputy,  a  judicial  officer  may  make  a  deputy. (rA 

566.  A  deputy  has  power  to  do  every  act  which  his  principal  might  have 
done,  Parker  v.  Kett  ;(<?)  and  it  is  there  *said,  that  this  is  so  essen-  r^.j.,-, 
tially  incident  to  a  deputy,  that  a  man  cannot  be  a  deputj''  to  do  any  L  J 
single  act,  nor  can  he  be  restrained  by  covenant  to  some  particulars  of 
his  office,  as,  if  the  under-sheriff  covenant  that  he  will  not  execute  any  pro- 
cess for  more  than  £'20,  without  special  warrant  from  the  high  sheriflf,  this 
is  void,  because  the  under-sherifTis  his  deputy,  and  the  power  of  the  deputy 
cannot  be  restrained  to  be  less  than  that  of  his  principal. (i^)  But  regularly 
a  deputy  cannot  make  a  deputy,  for  that  imports  an  assignment  of  all  his 
authority,  which  is  not  assignable  ;(g')  but  a  deputy  may  depute  another  to 

.  do  a  particular  act,  as  if  A.  be  appointed  steward  of  a  copyhold  court,  to  be 
exercised  by  himself  or  deputy,  and  he  appoint  B.  his  deputy,  who  autho- 
rises D.  and  C.  to  take  a  surrender  of  a  copyhold  tenement,  the  surrender 
will  be  good,  being  only  a  single  act.(5*)  A  deputy,  however,  ought  to 
act  regularly  in  the  name  of  his  principal,  as  an  under-sherifl  does  all  in  the 
name  of  the  sheritf,(g')  and  all  his  acts  are  in  right  of  his  principal,  and  as 
liis  servant  ;(/i)  but  an  act  by  a  deputy  in  his  own  name  will  be  good, 
except  in  special  cases. (t) 

567.  As  an  office  is  a  thing  which  lies  in  grant,  regularly  an  officer  can- 
not be  appointed  without  deed,  so  neither  can  there,  according  to  the  belter 
opinion,  be  a  deputation  without  deed  ;(j')  although  it  has  been  said  that  the 
deputation  of  an  office  is  in  its  own  nature  grantable  by  parol,  and,  therefore, 
though  it  should  happen  to  be  granted  in  writing,  yet  since  it  is  in  itself 
grantable  by  parol,  it  may  be  revoked  by  parol. (A;) 

An  under-sheriff  may,  however  be  appointed  by  parol,  for  he  claims  no 
interest  in  the  office,  but  as  a  servant  \{l\  so,  a  high  constable  may  appoint 
a  deputy  by  parol,  (m) 

*568.  By  the  2  H.  6,  c.  10,  it  is  provided,  that  all  officers  who  p^^^kq-j 
are  by  their  letters-patent  to  appoint  clerks  and  ministers,  shall  be  L  "J 
charged  to  appoint  such  for  whom  they  will  answer  at  their  peril,  and  regu- 
larly, all  officers  shall  answer  for  their  deputies  ;(?i)  so,  the  franchise  of  a 
lord  shall  answer  for  a  bailiff  put  in  by  him  ;(o)  and  upon  the  rule  of 
respondeat  superior,  regularlj'^,  all  officers  shall  answer  of  their  deputies, 

(y)  4  Inst.  88.  {z)  1  Roll.  Abr.  274.  («)  4  Inst.  49. 

{b)  Lill.  Reg.  446.  (c)  1  Lev.  76.  (rf)  4  Inst.  126, 128. 

(c)  1  Salk.  95  ;  S.  C,  1  Ld.  Raym.  658. 

(a-)  Parker  v.  Kctt,  1  Salk.  95 ;  S.  C.  Ld.Raym.  658.  (A)  11  E.  4. 1  b. 

(j)  Parker  v.  Kett,  1  Salk.  96. 

(j)  Gawton  and  Lord  Dacrc's  case,  1  Leon.  219  ;  R.  v.  liCnthal,  3  Mod.  147. 

Ik)  Ca.  Law.  and  Eq.  74.  {I)  Clccott  v.  Denjs,  Cro.  El.  67. 

(m)  Midhurst  v.  Waitc,  3  Burr.  1259.  (n)  2  Inst.  466. 

(o)  Dean  and  Chapter  of  St.  Paul's  case,  cited  2  Lev.  IGO. 

November,  1846.— 31 


318  crabb's  law   of    real  property. 

in  the  same  manner  as  if  the  acts  -were  done  by  themselves, (;;)  unless  it 
be  in  criminal  cases,  therefore,  sheriffs  shall  answer  for  the  escapes,  amerci- 
aments, &c.  of  their  deputies  ;(/;)  so,  where  the  warden  of  the  Fleet  in  fee 
granted  the  office  for  life  to  A.,  who  suliered  escapes,  he,  and  not  A.  was 
held  liable  ;(<^)  so,  where  a  person  was  appointed  collector  of  the  customs  in 
a  certain  port,  who  was  empowered  by  the  1  El.  c.  12,  to  appoint  a  deputy, 
and  a  deputy  so  appointed  b}'  him  concealed  the  goods  of  a  merchant,  and 
the  customer  being  ignorant  thereof,  returned  on  oath  into  the  Exchequer  the 
customs  of  this  port,  according  to  the  information  of  his  deputy,  it  was  held, 
that  he  should,  notwithstanding  his  ignorance,  answer  for  the  act  of  his 
deputy  ;(;•)  but  if  a  clerk  in  an  office  mis-enter  anything,  it  was  held,  that  he 
himself  should  be  punished,  and  not  the  master  of  the  office,  because  he 
took  a  fee  for  it. (5) 

5G9.  Generally,  an  act  of  the  deputy,  without  the  assent  of  his  superior, 
will  not  be  a  forfeiture  of  the  office,  as  the  act  of  an  under-sheriff  or  under- 
bailiff  is  not  a  forfeiture  of  the  office  of  the  sheriff  or  bailiff  in  fee  ;(/)  but  it 
seems  from  other  cases  that  if  a  deputy  suffers  escapes,  it  is  a  forfeiture 
by  the  principal,  unless  such  deputation  be  made  for  life,  and  then  the 
grantee  for  life  only  forfeits  the  office, (?/)  see  further  Dig.  P.  iii.  lit.  Prisons, 
r^jy-q-i  *^°  ^^  ^"^^  been  said,  that  though  a  mandamus  will  not  he  for  a 
L  -^  deputy,  yet  it  lies  for  him  who  disputes  him,  to  have  such  deputy 
either  admitted  or  restored,  for  that  otherwise  he  might  be  deprived  of  his 
power  to  make  a  deputy.(a:) 


VI.  z'^iitit  Instate  maw  Uc  ixati  in  an  <PfFtcr. 


§  570.  Estate  in  an  Office  to  a  man  and  his 
Heirs. 
Entail  of  Offices. 
571.  Estate  for  Life  in  an  Office. 


§  572,  Cnrtesy  in  an  Office. 
573.  Dower  in  an  Office. 
571.  No   Trust    can    be   created    in    an 
Office. 


§  570.  Many  offices  are  hereditarv,  and  having  existed  time  out  of  mind, 
may  be  said  to  be  derived  from  immemorial  usage,  or  they  may  be  granted 
to  a  man  and  his  heirs,  or  for  hfe,  for  years,  or  during  pleasure  only,  see 
ante  §  547  et  seq.(j^) 

INIany  offices  in  fee  may  be  settled  and  confirmed  to  the  heirs  of  the  body 
of  the  grantee,  as  the  office  of  the  Earl  Marshal  of  England  ;(z)  so,  there 
may  be  an  estate  tail  of  the  office  of  steward,  receiver,  or  bailiff  of  a  luanor, 

(/))  4  Co.  33 ;  2  Inst.  466.  (g)  Plummer  v.  Whitchcott,  2  Lev.  1 58. 

(r)  Dy.238,pl.  38.  (s)  1  Leon.  146.  CO  2  Inst.  190. 

(m)  R.  v.  Lady  Boughton,  2  Lev.  71.     Sec  also  Dy.  278 ;  Cro.  El.  534 ;  "Poph.  119. 

(x)  R.  V.  President,  &,c.,  of  the  Marches,  1  Lev.  306 ;  S,  C,  2  Keb.  738 ;  S.  C.  1 
Vent.  110.     - 

iy)  Dy.  285 ;  Earl  of  Shrewsbury's  case,  9  Co.  48 ;  Reynell's  case,  9  Co.  99 ;  2  Inst. 
382. 

(«)  1  H.  7,  28,  cited  in  NcN-il's  case,  7  Co.  33 ;  but  see  Show.  P.  C.  1,  where  the  doc 
trine  laid  down  in  tliat  case  is  called  in  question. 


OFFICES.  319 

because  it  is  exercisable  within  lands  ;(a)  so,  of  the  chamberlainship  of  the 
Exchequer  ;(6)  so,  it  may  be  granted  by  a  man  to  be  regranted  to  himself 
and  the  heirs  male  of  his  body  ;(6)  or  there  may  be  a  covenant  to  stand 
seised  of  it  to  the  use  of  another  ;(c)  but  it  has  been  held,  that  the  great 
chamberlainship  of  England,  being  inherent  in  the  blood  of  the  first  grantee, 
was  incapable  of  alienation,  and  could  not  therefore  be  entailed. ((A 

*571.  At  common  law  all  offices  of  justice  were  grantable  for  p^t^-^-i 
life,  (see  ante,  §  548,)  but  it  is  said,  that  when  the  queen  grants  an  L  J 
office  at  will,  though  she  should  grant  to  the  patentee  a  rent  for  his  life  for 
exercise  of  the  same,  yet  this  was  no  absolute  estate  for  life,  because  the 
rent  being  granted  on  account  of  the  office,  and  in  discharge  of  the  duties  of 
the  place,  whenever  his  interest  in  the  office  ceased,  the  rent  would  deter- 
mine also,  being  originally  granted  for  the  exercise  of  the  office  in  which 
he  ceased  to  be  concerned. (e) 

An  office  granted  for  life  may  be  granted  with  remainder  over  to  another 
for  life.(/)  So,  the  lord  of  a  manor  may  by  deed  grant  the  stewardship 
of  the  manor  of  the  courts  thereto  belonging,  for  the  life  of  the  grantee,  so  as 
to  bind  the  future  owners  of  the  manor,  (g-) 

572.  Curtesy  and  dower  are  both  incident  to  offices  of  inheritance.  From 
an  early  case  cited  by  Lord  Coke,  it  appears  that  John  Duke  of  Lancaster 
claimed  to  exercise  the  office  of  seneschal  of  England,  at  the  coronation  of 
Richard  2,  as  tenant  by  curtesy,  which  claim  was  allowed  ;  and  a  similar 
claim  was  made  at  the  same  coronation  by  John  Dymock,  to  the  office  of 
King's  champion,  which  was  in  hke  manner  allowed. (A) 

573.  So,  a  woman  may  be  endowed  of  an  office  of  inheritance,  as  of  the 
office  of  the  marshalsea,  to  have  the  third  part  of  the  profits,  and  in  such 
case  she  shall  be  contributory  to  a  third  part  of  the  charge ;  so,  she  may  be 
endowed  de  tertid  parte  exituum  provenent,  tie  cuslodid  gaolx  Mbalh. 
Westm.,  or  of  the  third  part  of  the  profits  of  courts,  fines,  heriots,  &c.(i) 


:.  In  Bellamy  v.  Burrow, (A;)  it  was  held,  that  a  trust  might  be  ^^4-^-1 
of  an  office,  and  that  an  office  might  be  granted  to  one  in  trust  L         -^ 


*574. 

created 

for  another,  but  subsequent  decisions  have  made  this  doctrine  very  question- 
able ;  thus,  in  Law  v.  Law,(/)  where  A.,  by  his  interest  with  the  commis- 
sioners of  excise,  got  an  orTice  in  that  branch  of  the  revenue  for  B.,  who  in 
consideration  thereof  gave  a  bond  to  A.  to  pay  him  £10  per  annum  as  long 
as  B.  enjoyed  the  place,  equity  would  relieve  against  the  bond  ;  so  in  Par- 
sons v.  Thompson(m)  and  Garforth  v.  Fearn,(n)  it  was  held,  that  if  an 
action  for  money  had  and  received  were  brought  upon  the  footing  of  an 
agreement  to  allow  a  certain  proportion  of  the  profits  of  the  office,  in  consi- 

(a)  1  Inst  20,  a;  1  Roll.  Abr.  838.  (6)  W.  Jo.  114, 

(c)  Id.  118.     See  also  Comb.  196;  3  Mod.  14.1. 

(d/)  W.  Jo.  96,  per  three  justices  contra  Crew,  C.  J. ;  Collms'  Claims,  Peer.  181. 

(e)  1  Inst.  4ii,  a.  (/)  Earl  of  Shrewsbury's  case,  9  Co.  48, 

(^)  Bartlctt  V.  Downes,  3  B.  &  C.  616.  (./i)  Coll.  Claims  Peer.  5. 

(i)  Plow.  379  ;  Perk.  342  ;  F,  N.  B.  149  ;  1  Inst.  32,  a.  (A)  Ca,  temp.  Talbot,  97. 

(0  Id.  140.  {m)  1  H.  Bl.  322.  (n)  Id.  327, 


320 


CRABBS  LAW  OF  REAL  PROPERTY. 


deration  of  his  having  procured  or  been  aiding  to  the  defendant's  appoint- 
ment to  it,  the  plaintiff  could  not  recover ;  in  the  latter  of  these  cases  it  is 
said,  "The  appointment  of  any  customer  contrary  to  the  12  R.  2,  c.  2,  is  a 
misdemeanor.  The  statute,  though  very  ancient,  is  certainly  not  obsolete, 
it  is  the  statute  under  which  they  are  sworn  in  the  Excliequer.  It  not  only 
prohibits  the  appointment,  but  goes  on  to  say,  that  'none  that  pursueth  by 
him  or  by  orders,  privily  or  openly,  to  be  in  any  manner  of  office,  shall  be 
put  in  the  same  ofHce  or  in  any  other,'  and  the  5  &  6  Ed.  6,  c.  16,  makes 
void  all  promises,  bonds,  and  assurances,  as  well  on  the  part  of  the  bar- 
gainor as  the  bargainee  ;"(o)  so,  where  A.  and  B.,  part  owners  of  a  ship, 
and  also  husbands  or  managing  owners,  sold  a  part  of  their  interest  to  C, 
and  the  deed  contained  a  covenant  that  C.  should  be  appointed  to  the  com- 
mand of  the  ship,  and  that  A.  and  B.  should  continue  husbands,  it  was 
held,  that  though  the  covenant  to  continue  C.'s  agents  in  the  concern  of  the 
ship  might  be  lawful  if  it  stood  alone,  yet  the  deed  being  founded  on  a  con- 
tract for  the  sale  of  the  shares,  with  a  stipulation  for  the  appointment  to  the 
command,  and  the  continuance  of  the  management,  it  was  illegal  and  void, 
^ .  ,  ^inasmuch  as  it  was  contrary  to  the  interest  of  the  charterers  and 
L  -•  the  other  owners, (/>)  see  further,  as  to  the  sale  of  offices.  Dig.  p.  iii. 
tit.  Offices. 

575.  There  may  also  be  a  reversionary  interest  in  an  office. (</) 


vir.  l&obj  an  <n)fftce  \mv>  tc  forfcftctr  or  lost. 


§576. 

Forfeiture  of  an  Office  by  Abuser. 

577. 

Forfeiture    of   an    Office    by   Non- 

user. 

578. 

WJiere   Non-attendance  is   no   For- 

feiture. 

579. 

In  respect  of  private  Matters, 

580. 

Breich  of  Conditicn. 

.581. 

Forfeiture  by  Refuser. 

582. 

Forfeiture  by  whose  Act. 

Tenant  in  Tail. 

Officer  for  Life. 

Deputy. 

583. 

Joint  Officers. 

584. 

Forfeiture  to  the  Crown. 

§  585.  Loss  of  Office  for  insufficiency, 

586.  Scire  Facias,  when  necessary. 

587.  Loss  by  Sale  of  Office. 

What  Offices  within  the  Statute,  or 
otherwise. 

588.  Sale   of  OtBce,   how   far   illegal   at 

Com  men  Law. 

589.  Loss  of  Office  by  Acceptance  of  an- 

other Office. 

590.  By    Destruction   of   the    Thing    to 

which  the  Office  is  annexed. 

591.  By  Neglect  to  qualify. 

592.  By  Demise  of  the  Crown. 

593.  By  Surrender. 


§  576.  To  every  grant  of  an  office  is  annexed  a  condition  in  law,  that  the 
officer  shall  do  that  which  to  the  office  belongs,  and  for  breach  of  the  condi- 
tion the  office  is  forfeited. (?')  An  office  may  be  forfeited  three  ways,  namely, 
by  abuser,  by  non-user,  and  by  refuser. 


(p)  Card  V.  Hope,  2  B.  &  C.  661.' 
tktt  V.  Downes,  3  B. 
Eng.  Com.  Law  Reps.  ix.  209.        tJd.  x.  201. 


(o)  Per  Ld.  Loughborough,  lb. 

(g)  See  ante,  §  5i4. 

(r)  Litt,  s.  378  ;  1  Inst.  233.    See  also  Bartktt  v.  Downes,  3  B.  &,  C.  617.'' 


OFFICES.  321 

Wherever  an  officer  acts  contrary  to  the  nature  and  duty  of  his  office, 
the  same  is  forfeited  ;(s)  as  if  a  gaoler  suffers  voluntary  escapes, (t)  or  is 
guiUy  of  extortion  ;(w)  so,  if  a  sheriff  suffer  a  felon  to  escape,  whether 
voluntarily  or  negligently,  it  is  a  forfeiture,  though  the  office  be  for  life  or 
in  *fee  ;(a')  but  one  negligent  escape  is  not  a  forfeiture,  though  it  is  r^,  .p.„-, 
otherwise  with  a  voluntary  escape,  or  with  two  negligent  escapes ;(?/)  L  -■ 
but  the  act  of  forfeiture  by  a  gaoler,  who  has  but  a  particular  estate,  as  for 
life  or  years,  does  not  affect  him  hi  reversion  or  remainder  who  has  the  in- 
heritance, whose  title  shall  immediately  accrue  upon  such  forfeiture,  and 
not  go  to  the  queen. (z) 

So,  it  is  to  be  understood,  that  if  any  keeper  kill  any  deer  without  war- 
rant, and  convert  them  to  his  own  use,  or  cut  any  trees  or  underwood,  it  is 
a  forfeiture  of  his  office. («) 

577.  With  respect  to  non-user  of  an  office,  a  distinction  is  to  be  taken 
where  the  office  concerns  the  administration  of  justice  or  the  commonwealth, 
and  when  it  concerns  a  private  individual. (Z*)  In  the  first  case,  the  officer 
ex  officio,  or  of  necessity,  ought  to  attend  without  demand  or  request ;  in 
this  case,  therefore,  by  non-user  or  non-attendance,  the  office  is  forfeited,  as 
the  office  of  chamberlain,  the  Exchequer  prothonotary,  clerks  of  the  war- 
rants, &c.,  in  the  Common  Pleas,  for  the  attendance  of  these  officers  is  of 
necessity  for  the  administration  of  justice,  and  the  at4,endance  of  the  clerk  of 
the  market  is  of  necessity  for  the  commonwealth. 

578.  So,  non-attendance  is  a  good  cause  of  forfeiture  of  the  office  of 
recorder,  his  office  being  a  public  office  relating  to  the  administration  of  jus- 
tice, (c)  But,  when  the  officer  ought  not  to  attend  and  exercise  his  office 
but  upon  demand  or  request  of  him  to  whom  he  is  officer,  there  non-attend- 
ance is  no  cause  of  forfeiture  without  demand  or  request  made,  as  where  the 
office  of  steward  is  granted  to  one  to  *hold  courts  when  he  shall  be  ^ 
required,  it  is  implied  in  the  grant  that  he  is  not  bound  to  hold  courts  L  J 
but  upon  request,  and  non-attendance  without  request  made  is  no  cause  of 
forfeiture  ;(rf)  so,  if  a  man  grants  an  annuity  pro  consilio  impendendo,  he  is 
not  bound  to  give  counsel,  but  upon  request  made.(e)  But  bare  non-attend- 
ance will  not  be  a  cause  of  forfeiture  ;  therefore,  where  the  king  gave  a 
license  to  a  serjeant-at-arms  for  not  attending  the  Chancellor,  it  was  no  for- 
feiture, though  the  license  was  only  by  parol  ;(f\  so,  if  an  officer  be  impri- 
soned for  a  misdemeanor  in  his  office,  non-attendance  during  his  imprison- 
ment is  no  forfeiture, (g)  particularly  if  the  non-attendance  arise  from  sickness 
or  other  inevitable  accident. (A) 

(s)  1  Inst.  233,  (0  R.  v.  Lenthal,  3  Mod.  143. 

-     (m)  R.  v.  liady  Boughton,  2  Lev.  71. 

(x)  Sir  John  Savage's  case,  Dy.  1.51  b  ;  2  Roll.  Abr.  155. 
((/)  39  H.  6,  c.  33;  2  Roll.  Abr.  155 ;  2  Vern.  173. 
(z)  R.  V.  Lady  Boughton,  2  Lev.  71.     See  also  Poph.  119. 

(a)  1  Inst.  233,  citing  15  E.  4.  3,  b.  (/>)  Earl  of  Shrewsbury's  case,  9  Co.  50, 

(c)  R.  V.  Ipswich  (Bailifts,  &c.),  2  Salk,  435  ;  S.  C,  2  Lord  Rayni.  1233,  See  also  4 
Burr,  1999,  (rf)  lb, 

(e)  30  H.  6,  22,  cited  Earl  of  Slu-ewsbury's  case,  9  Co.  50 ;  Biuin's  case,  Dy.  369. 
(/)  Moor,  193,  (s)  R.  v.  Rooks,  Cro,  Car,  492. 

(A)  lb. ;  R,  V,  Wells  (Corporation),  4  Burr.  1999. 


322  crabb's  law  of  real  property. 

579.  When  the  office  relates  to  any  man's  private  concerns,  and  the 
officer  ought  ex  officio  to  attend  his  office  without  request,  there  the  non-user 
or  non-attendance  is  no  cause  of  forfeiture  unless  the  non-user  or  non-atten- 
dance is  cause  of  prejudice  or  damage  to  him  whose  officer  he  is,  in  some- 
thing which  concerns  his  charge,  as  if  a  parker  does  not  attend  one  or  two 
days,  and  within  those  days  no  prejudice  or  damage  happens,  it  is  no  forfei- 
ture, but  if  by  reason  of  his  absence  persons  unknown  kill  any  deer,  it  is  a 
forfeiture  of  his  office,  and  therewith  agrees  5  E.  4.  6,  cited  Earl  of  Shrews- 
bury's case.(i) 

580.  If  conditions  in  law  which  are  annexed  to  offices  be  not  observed 
and  fulfilled,  the  breach  is  a  cause  of  forfeiture,  whether  it  be  by  non-user 
or  abuser  ;(j)  therefore,  in  the  case  of  a  searcher  of  customs  in  a  port  town, 
if  neither  the  searcher  himself  nor  any  of  his  deputies  attend,  though  it  do 

^  not  appear  *to  be  from  actual  negligence,  yet  this  voluntary  absence 

L  by  himself  and  his  servants  is  deemed  not  crassa  negligentia  merely, 

but  a  voluntary  omission  and  forfeiture  ;(/i)  so,  too,  "  If  a  gaoler  leaves  the 
prison  doors  unlocked,  and  the  prisoners  escape,  it  is  to  be  considered  not 
only  a  negligent,  but  a  voluntary  escape  ;"(/)  for  these  conditions,  being  pro 
commodo  regis  et  populi,  arc  held  to  be  as  strong  and  binding  as  express  con- 
ditions ;(?n)  and,  therefore,  though  the  office  of  forester,  or  the  like,  descend 
to  an  infant,  or  feme  covert,  (where  by  law  they  may  so  descend),  5^et  if  they 
are  not  exercised  by  sufficient  deputies,  they  become  forfeited,  notwithstand- 
ing the  natural  debility  of  the  principal  ;(n)  so,  if  a  parker  or  forester  cut 
down  trees  for  reparations,  so  as  not  to  leave  sufficient  for  browse,  shade,  and 
cover  for  the  game,  this  will  be  a  forfeiture,  because  he  breaks  the  condition 
annexed  in  law  to  his  office,  that  he  will  preserve  the  game  and  not  do  any 
thing  that  may  diminish  and  destroy  them.(o) 

581.  As  to  refusal,  in  all  cases  where  an  officer  is  bound  upon  request 
to  exercise  an  office,  if  he  neglects  to  do  it  upon  such  request,  he  forfeits 
it,  as  if  the  steward  of  a  manor  is  requested  by  the  lord  to  hold  a  court, 
which  he  doth  not,  it  is  a  forfeiture  ;(p)  so,  as  a  recorder  is  bound  to 
attend  and  assist  at  the  sessions,  to  direct  a  corporation  in  the  proceedings  of 
justice,  his  non-attendance  Avas  held  to  be  a  cause  of  forfeiture  ;(f/)  but  it 
must  be  a  general  refusal  or  neglect  to  attend,  to  occasion  such  a  forfeiture. (r) 

-^  582.  If  tenant  in  tail  of  an  office  commit  a  forfeiture,  *this  shall 
L  J  bind  the  issue  by  force  of  the  condition  facife  annexed  bylaw  to  the 
estate  ;(s)  but  if  an  officer  for  life  commit  a  forfeiture,  this  shall  not  affect 
him  that  hath  the  inheritance. (/) 

If  the  deputy  of  an  office  in  fee  does  any  act  by  which  the  office  is  for- 

(i)  9Co.  .'JOb.  (j)  11  E.  4.  l,b. 

(k)  R.  V.  Rooks,  Cro.  Car,  492.  (/)  Per  Curiam,  lb. 

(m)  Lit.,  sect.  378,  379  ;  1  Inst.  233,  234.      (n)  8  Co.  44  ;  Cro.  Car.  556 ;  tiard.  11. 

(o)  Litt.,  sect.  378,  379  ;  1  Inst.  233  ;  Pembroke  v.  Berkeley,  Cro.  El.  385.  See  also 
Poph.  119  ;  1  And.  29  ;  Moor,  707  ;  2  Mod.  121. 

(«)  Earl  of  Shrewsbury's  case,  9  Co.  50  b. 

iq)  Serjeant  Whitacre's  case,  2  Salk.  435  ;  S.  C,  2  Ld.  Raym.  1233. 

(r)  R.  V.  Wells  (Corporation),  4  Burr.  1999. 

(s)  Nevil's  case,  7  Co.  34  b,  citing  22  Ass.  34;  8  H.  4.  13;  39  H.6.  32;  11  E.  4.  1 ;  20 
E.  4.  5,  6;  Nevil's  case,  Plow.  370. 

(/)  R.  V.  Lady  Broughton,  2  Lev.  71.    See  also  Poph.  119  ;  2  Roll.  Abr.  153. 


OFFICES.  323 

feited,  the  inheritance  of  the  office  is  thereby  lost;(«)  but  if  a  person  having 
an  office  of  inheritance,  grants  a  lease  of  the  same  for  life  and  the  lessee 
commits  a  forfeiture,  the  office  for  life  is  forfeited  to  him  in  reversion  and 
not  to  the  Crown,  (w) 

583.  Where  an  office  is  granted  to  two,  and  one  of  them  is  attainted  of 
treason,  the  other  shall  not  forfeit ;  therefore,  where  the  office  of  guardian 
and  keeper  of  the  park  was  granted  to  two,  with  a  certain  fee,  during  their 
lives,  and  the  longest  liver  of  them,  to  be  exercised  by  them  or  their  suffi- 
cient deputy,  for  whom  they  should  answer,  and  one  of  them  was  attainted, 
it  was  held,  that,  being  only  an  office  of  skill  and  confidence,  the  same  was 
not  forfeited,  but  that  the  other  should  hold  the  same  with  the  profits  inci- 
dent thereto  ;(a?)  but  where  it  is  an  office  of  trust  and  confidence,  and  one  of 
the  joint  officers  is  attainted,  the  entire  office  is  forfeited  to  the  queen,  for  she 
cannot  make  one  to  occupy  in  common  with  another. (?/) 

584.  If  an  office  be  forfeited,  the  Crown,  as  a  rule,  shall  have  the  benefit 
of  the  forfeiture,  (but  see  supra,  §  582,)  and,  therefore,  where  a  statute 
makes  an  office  void  for  any  cause,  the  queen  shall  have  the  forfeiture  ;(;,) 
so,  where  the  *office  of  archdeacon's  register  was  forfeited  under  the  (-^^/.i-i 
5  &  6  E.  6,  c.  16,  against  the  sale  of  offices,  it  was  held,  that  the  L  J 
archdeacon  being  disabled,  the  king  as  supreme  ordinary  should  have  the 
nomination, («) 

585.  Besides  the  above-mentioned  causes  of  forfeiture,  an  office  may  be 
lost  by  other  causes,  as  insufficiency,  or  inability  to  execute  it,  thus,  if  a 
superior  put  a  deputy  into  an  office,  exerciseable  by  deputy,  who  is  igno- 
rant and  unskilful,  or  otherwise  unable  to  fulfil  the  duties  attached  to  it,  this 
is  a  forfeiture  of  the  office  by  the  principal,  and  the  grant  is  void,  and  the 
officer  removable  ;(6)  so,  though  the  queen  herself  grant  an  office  in  any  of 
the  courts  of  Westminster  to  a  person  who  is  insufficient,  the  judges,  who 
are  the  proper  persons  to  decide  upon  his  abilities,  are  the  proper  persons 
to  remove  him ;  therefore,  where  a  filacer  of  the  C.  P.  was  absent  from  his 
office  for  two  years,  and  had  farmed  out  his  office  from  year  to  year,  without 
license  from  the  Court,  he  was  discharged  by  the  chief  justice,  ex  assensu 
sodorum  suorifm,  by  words  openly  spoken  in  court ;(c)  so,  an  officer  was 
turned  out,  because  that  he  spoliovit  qi(xdam  recorda  contra  officii  siii  debi- 
tum ;{d)  so,  a  clerk  of  the  peace  is  removed  for  not  delivering  the  records 
to  the  new  custos  rotulorum.[e) 

586.  But  an  officer,  who  holds  his  office  by  patent,  cannot  be  turned  out 
without  a  scire  facias.[f\ 

(u)  Bro.  Ahr.  tit.  Deputy,  pi.  7.     See  a]so  Dy.  278  ;  Cro.  El.  534  ;  Poph.  119. 

(v)  R.  V.  Manlove,  3  Lev.  288  ;  S.  C,  2  Salk.  469,  recog-nizinjr  Latly  Bioiighton's  case, 
sup.  (x)  Nevil's  case,  Plowd.  378. 

ly)  Id.  380.     Sec  also  Brook,  tit.  Office,  pi.  51.  (z)  R.  v.  Manlove,  3  Lev.  289. 

(a)  Woodward  v.  Foxe,  2  Lev.  289  ;  S.  C,  2  Vent.  187. 

(&)  4  Mod.  29,  30,  Arg.  (c)  Dy.  114  b.  pi.  64 ;  S.  C,  1  Roll.  Abr.  155. 

{il)  Pilkinn;ton's  case,  1  Kcb.  597. 

(e)  R.  V.  Evans,  4  Mod.  31,  32  ;  S.  C,  Show.  282;  S.  C,  12  Mod.  13.  See  alsoCarth. 
426;  Ld.  Raym.  158,  166;  2  Sir.  996;  Holt,  88,  pi.  1. 

(/)  Dy.  155,  198,  211 ;  8  Co.  44;  9  Co.  98;  1  Inst,  233;  Cro.  Car.  60;  1  Roll.  Abr. 
580 ;  3  Lev.  288 ;  1  Sid.  81 ;  3  Mod.  335. 


324  crabb's  law  of   real  property. 

'     So,  though  an  officer  be  removed  for  insufficiency,  it  is  said  that  he  can- 
not be  abridged  of  liis  fee  during  his  continuance. (g") 

r*4R9l  *587.  Again,  an  office  may  be  lost  by  a  sale  thereof  within  the 
«-  -*  5  &  6  E.  6,  c.  16,  and  this  statute  extends  to  all  offices  which  con- 
cern the  administration  of  justice,  as  well  in  the  spiritual  courts,  as  in  the 
courts  of  common  law;(/i)  so,  to  the  office  of  warden  of  the  Fleet  ;(t)  so,  to 
all  offices  which  concern  the  revenue  of  the  Crown, (A;)  as  to  the  cofferer  of 
the  king's  household, (/)  or  surveyor  of  the  customs,(?7i)  and  it  will  be  with- 
in the  statute  if  a  man  for  money,  &c.,  surrender  such  an  office,  to  the  intent 
that  the  queen  may  grant  it  to  another ;(«)  so,  an  obligation  for  the  perform- 
ance of  covenants  in  an  indenture  will  be  void  if  there  be  anything  relating 
to  the  sale  of  an  office  ;(o)  so,  where  a  trust  is  created,  it  is  clearly  within 
the  statute  ;(;;)  so,  an  assignment  of  the  emoluments  of  the  office  of  clerk 
of  the  peace  is  invalid. (^)  But  the  office  of  bailiff  of  a  hundred  is  not 
within  the  statute,  for  it  is  not  a  place  of  trust  ;(r)  so,  not  a  place  in  the  Six 
Clerks'  Office,  for  it  is  merely  a  ministerial  office ;(«)  so,  not  an  office  of 
inheritance ;(/)  so,  not  an  office  for  life  or  years  derived  from  an  office  of 
inheritance  ;(w)  so,  it  is  not  within  the  statute  if  a  deputy  gives  a  bond  to 
pay  a  moiety  of  the  profits  to  his  principal,  for  that  amounts  only  to  an 
allowance  of  the  other  moiety  to  the  deputy  for  his  trouble  ;(a:)  or  a  sum  in 
gross  out  of  the  profits,  for  if  the  profits  do  not  amount  to  it,  it  shall  not  be 
paid  ;(2/)  so,  a  less  sum  certain  where  the  profits  arc  uncertain ;(?/)  so,  the 
-.  statute  does  not  extend  to  *commissions  in  the  army ;(;::)  so,  not  to 
L  J  the  office  of  private  secretary  ;(a)  so,  not  to  pages  of  the  pre- 
sence. (Z/)  So,  before  6  G.  4,  cc.  82,  83,  the  sale  of  offices  in  the  courts  of 
Q,.  B.  and  C.  P.  was  not  unlawful,  see  further  as  to  the  sale  of  offices  under 
the  different  statutes.  Dig.  P.  iii.  tit.  Offices. 

588.  It  appears  that  the  offering  a  bribe  for  procuring  an  appointment  to 
a  public  office  was  a  misdemeanor  at  common  la\v;(c)  and  it  has  been 
decided,  that  the  appointment  of  captain  of  an  East-Indiaman,  although  not 
within  the  statute,  (see  supra,  §  587,)  cannot  be  sold  by  the  owner  without 
the  consent  of  the  East  India  Company,  such  a  sale  being  Ueld  contrary  to  a 
by-law  of  the  company  and  also  to  the  principles  of  public  policy  ;{d)  and 

(C-)  Cro.  Jac.  17,  18.  (h)  3  Inst.  148;  12  Co.  78  ;  Cro.  Jac.  269  ;  2  Vent.  267. 

(i)  Iluijirins  V.  Bambridffe,  Willcs,  241.  {k)  1  Inst.  234. 

(/)  Ing-i-ani's  case,  Cro.  Jac.  386.  {m)  2  And.  55.  (n)  1  Inst.  234 ;  2  And.  57. 

(o)  2  And.  57.  (p)  Fordice  v.  Willis,  3  B.  C.  C.  579.     See  ante,  §  574. 

Iq)  Palmer  v.  Bate,  2  B.  &  B.  673  ;>  S.  C,  6  J.  B.  Moore,  28. 

(r)  Godbolt's  case,  4  Leon.  33.  (s)  Sparrow  v.  Reynolds,  Bac.  Abr.  tit.  Offices,  (F.) 

(0  WiUes,  245.  in)  Ellis  v.  liiiddle,  2  Lev.  151. 

Iz)  CJulliford  v.  De  Cardoncll,  2  Snlk.  466;  S.  C.  nom.  CuUiford  v.  CardoneU,  1  Com.  1. 

(y)  Godolphin  v.  Tudor,  2  Salk.  468. 

(z)  Ive  V.  Ashe,  Prec.  in  Chan.  199 ;  Symonds  v.  Gibson,  2  Vcrn.  308 ;  Morris  v. 
M'Culloch,  Anibl.  432.     Sec  also  5  Burr.  2698;  1  H.  Bl.  326. 

(«)  HarriuiTton  v.  Kloproggc,  2  B.  &,  B.  678,''  n.;  S.  C,  6  J.  B.  Moore,  31,  n.;  2  Chitt. 
Ca.  toinp.  IMansficld,  475. 

(h)  Harrington  v.  Du  Chatcl,  1  B.  C.  C.  121, 

(c)  K.  V.  Vau<rhaii,  4  Burr.  2494 ;  R.  v.  PoUman,  2  Campbell,  230. 

(J)  Blachford'v.  Preston,  8  T.  R.  89. 

»Eng.  Com.  Law  Reps.  vi.  311.  ''Id.  vi.  314. 


OFFICES.  325 

any  private  agreement  entered  into  between  parties  for  procuring  an  appoint- 
ment, without  the  knowledge  of  the  person  who  has  the  power  of  appoint- 
ing, has  been  held  to  be  such  a  fraud  upon  him  as  would  avoid  the  cove- 
nant, whether  the  office  be  lawfully  saleable  or  not.(e) 

So,  courts  of  equity  acting  upon  the  spirit  of  this  statute  have  interposed 
at  different  times  to  set  aside  bonds  and  annuities  given  in  regard  to  such 
offices ;(/)  therefore  where  a  person  gave  a  sum  of  money  to  another  for 
procuring  him  a  commission  in  the  marines,  the  bargain  was  decreed  to  be 
void  ;{g)  so,  where  bonds  were  given  to  secure  the  payment  of  annuities 
granted  in  consideration  of  *recommending  certain  parties  to  be  p^^^^-i 
pafifes  of  the  presence,  a  perpetual  injunction  against  the  bonds  was  L  -^ 
granted  upon  the  public  policy  of  law,  although  the  office  was  not  within 
the  5  &  6  E.  6.  (A) 

589.  An  office  may  likewise  be  lost  by  the  acceptance  of  another  office 
that  is  incompatible  therewith,  as  if  the  one  office  be  under  the  control  of  the 
other,  therefore  if  the  remembrancer  of  the  Exchequer  be  made  a  baron  of 
the  Exchequer  ;(i)  but  acceptance  of  an  incompatible  office  has  been  held 
not  to  operate  as  an  absolute  avoidance  of  a  former  office, (y)  see  further, 
ante,  §  560. 

590.  So,  an  office  may  be  lost  by  destruction  of  the  thing  to  which  the 
office  is  annexed,  as  if  one  grants  the  office  of  parker  and  afterwards  de- 
stroys his  park,  the  office  with  all  casual  fees  is  gone,  Howard's  case  ;(^-) 
and  it  is  there  said,  that  "  although  it  be  true  that  an  officer,  who  hath  the 
grant  of  an  office  for  life  or  years,  and  is  to  have  the  profit  of  casual  fees,  as 
steward,  baihff',  or  parker,  cannot  be  discharged  of  the  office,  for  then  he 
should  not  have  his  casual  fees,  that  is  to  be  understood  that  the  grantor 
cannot  appoint  another,  Avhere  the  park  or  manor  continues,  but  when  the 
park  itself  is  determined,  and  disparked,  the  office  which  is  appendant 
thereunto  shall  be  also  determined. "(/) 

So,  if  a  corporation  be  dissolved  or  surrender,  the  office  of  recorder,  town- 
clerk,  &c.  is  gone;(m)  but  if  the  queen  or  another  grant  to  an  officer  a  col- 
lateral fee,  as  £20  per  annum  for  his  life,  for  the  exercise  of  his  office,  that 
does  not  determine  on  the  determination  of  the  office. (m) 

591.  By  the  13  C.  2,  c.  1,  and  25  C.  2,  c.  2,  all  persons  admitted  to  any 
office  of  trust  were  required  to  take  certain  *oaths  and  also  the  sacra-  p^^^K-i 
ment,  as  a  qualification  for  their  holding  office  ;  but  these  Acts  have  L  J 
been  either  repealed  or  considerably  altered  by  subsequent  statutes.  Under 
one  of  these,  the  5  G.  1,  c.  6,  it  has  been  held  that  since  that  statute  the 
election  of  a  person  who  had  neglected  to  qualify  within  the  time  prescribed 
was  not  void,  but  voidable, (n)  see  further  Dig.  P.  i.  tit.  Oaths,  Affirmations, 
P.  ii.  tit.  Corporations,  P.  iii.  tit.  Roman  Catholics. 

(e)  Waldo  v.  Martin,  4  B.  &  C.  319  ;<=  S.  C,  6  D.  &,  R.  364 ;  2  C.  &,  P.  1. 

If)  Fonbl.  Treat.  Eq.,  b.  1,  c.  4,  s.  4.  (^)  Morris  v.  ]\I'Ciilloch,  Ambl.  433. 

(/))  Harringrton  v.  Da  Chatel,  1  B.  C.  C.  124.     See  also  Hartwell  v.  Hartwell,  4  Ves.  811 . 

(i)  Dy.  197  b,  ( j  )  R.  V.  Patteson,  4  B.  &  Ad.  9.'i  (A-)  Cro.  Car.  60. 

(Z)  Per  Curiam,  lb.  {m)  Howard's  Case,  Hutt.  87. 

(n)  Crawford  v.  Powell,  2  Burr.  1017. 

'=Eng.  Com.  Law  Reps.  x.  341.  ^Id.  xxiv.  11. 


326 


CRABB  S  LAW  OF  REAL  PROPERTY. 


593.  So  by  the  common  law,  all  patents  of  justices  of  the  Courts  of  Q,.  B., 
C.  P.  and  Exchequer,  as  also  of  sheriffs,  escheators,  commissioners  of  oyer 
and  terminer,  &c.,  and  Attorney-General,  determined  by  the  demise  of  the 
Crown  ;  but  the  7  &  8  W.  3,  c.  27,  1  A.  c.  8,  and  4  A.  c.  8,  have  pro- 
vided that  such  offices  shall  continue  for  six  months,  unless  sooner  deter- 
mined by  the  successors  ;  and  in  regard  to  the  judges,  the  1  G.  3,  c.  23, 
has  declared  that  they  should  not  be  affected  by  any  such  demise.  So,  the 
office  of  sheriff,  in  places  where  he  is  chosen  by  a  corporation,  having  by  its 
charter  the  inheritance  of  the  office  in  them,  does  not  determine  by  such 
demise, (o)  nor  the  authority  of  a  coroner  or  verderor;(o)  so,  no  corporate 
officer,  who,  by  the  charter,  is  invested  with  judicial  authority,  shall  lose  it 
by  such  demise.  (j9) 

593.  Lastly,  an  office  may  be  lost  by  surrender,  as  if  an  officer  surrender 
his  patent  in  chancery  ',[q)  but  if  the  patent  itself  be  not  surrendered  to  be 
cancelled,  nor  a  vacatur  entered  of  the  inrolment,  nor  an  entry  made  of  the 
surrender  in  the  life  of  the  Master  of  the  Rolls,  though  there  be  an  entry 
upon  record,  that  it  was  surrendered  before  the  Master  of  the  Rolls,  it  is  not 
a  good  surrender. (»•) 

594.  An  office  may  be  suspended  as  well  as  absolutely  forfeited,  but  it 
r*4fifi"l  ^^^^  been  held  that  inasmuch  as  the  queen  *may  take  advantage  of 
L  -J  a  forfeiture,  either  by  scire  facias,  inquisition,  or  information,  if  she 
suspend  an  officer  without  adopting  any  of  these  modes,  the  officer  will 
be  entitled  to  receive  his  salary. (*) 


VIII.  Sfstuiisancc  of  an  ©fficc,  autr  the  JXcincKfes. 


§  595.  What  a  Disturbance,  or  otherwise. 
Where  an  Action  lies,  and  in  what 
Courts. 


596.  Action  on  the  Case.  » 

597.  Action  for  Fees,  &c.,  to  try  Title. 
Quo  Warranto  not  grantable,  when. 


§  595.  In  an  early  case,(;f)  it  was  decided,  that  threatening  to  beat  a  man, 
to  prevent  him  from  exercising  an  office,  Avas  not  a  disturbance  ;  but  in  the 
Earl  of  Shrewsbury's  case,(M)  holding  courts  and  taking  fees  was  declared 
to  be  a  disturbance. 

Before  the  abolition  of  assizes,  by  the  3  &  4  W.  4,  c.  27,  see  Dig.  P.  iii. 
tit.  Limitations,)  it  was  held  clearly  that  this  real  action  lay  at  common  law 
for  an  office,  and  not  only  for  offices  in  fee  but  also  for  those  in  tail  or  for 
hfe,(.x')  and  the  plaintiff  might  then  elect  to  have  an  assize  or  an  action  on 
the  case  for  a  disturbance. (y) 

An  assize  lay  for  the  office  of  registrar  of  the  Admiralty  ;  for  though  their 


(o)  Dy.  165 ;  Dalis,  15  ;  2  Inst.  175.  (p)  7  Co.  30  b. 

(9)  11  E.  4,  1  b.  (r)  Dy.  195. 

(s)  Slingsby's  case,  3  Swanst.  178,  n.  (r). 

(0  10  E.  4,  10  b,  and  11  a,  cited  in  argument  9  Co.  51  a,  {li)  9  Co.  51. 

(x)  Webb's  case,  8  Co.  47  a.  {y)  Earl  of  Shrewsbury's  case,  9  Co.  51. 


DIGNITIES.  327 

proceedings  are  according  to  the  civil  law,  yet  the  right  of  their  offices  is 
determinable  at  common  law  ;(c)  so,  of  the  mastership  of  an  hospital,  being 
a  lay  fee  ;(^)  so  the  right  of  the  office  of  registrar  to  a  bishop  is  to  be  deter- 
mined at  common  law,  and  not  to  be  tried  in  the  spiritual  court,  though  the 
subject-matter  is  spiritual,  because  the  office  itself  being  matter  of  freehold, 
is  for  that  *reason  of  temporal  cognizance  ;(«)  but  a  mandamus  will  r-^An^-i 
not  lie  to  restore  a  proctor  to  his  office  that  being  a  matter  properly  L  J 
cognizable  in  the  spiritual  courts. (6) 

596.  An  action  on  the  case  will,  as  it  seems.  He  for  the  disturbance  of  a 
parish  clerk  in  the  exercise  of  his  office. (c)  So,  a  man  may  bring  an  action 
on  the  case  for  the  profits  of  an  office  though  he  never  had  seisin  ',{cl)  but  if 
the  perquisites  of  an  office  are  mere  gratuities,  not  known  and  accustomed 
fees,  no  action  will  he  to  recover  them.(e) 

597.  So,  an  action  for  money  had  and  received  may,  in  some  cases,  be 
brought  as  a  convenient  mode  of  trying  title  to  an  office,  as  where  the  king 
granted  the  office  of  comptrollers  of  the  customs  to  A.  and  B.,  and  A.  died, 
and  after  the  king  granted  the  said  office  to  C,  and  yet  B.  under  pretence 
of  survivorship  exercised  the  said  office,  held,  that,  as  a  grant  at  will  to  two 
persons,  it  was  determined  by  the  death  of  one,  and  that  C.  might  maintain 
an  action  of  indebitatus  assumpsit  for  so  much  money  had  and  received  to 
his  use  ;(/)  so,  where  a  defendant  claimed  title  to  hold  courts  leet  as  well 
as  courts  baron, (g-)  for  offices  of  this  kind  are  not  of  sufficient  importance 
for  the  Court  to  notice  them  by  way  of  in  formation,  (A)  and  a  rule  to  shew 
cause  was  refused  in  the  case  of  a  churchwarden  ;(i)  but  where  there  were 
no  fees  for  which  an  action  would  lie,  it  was  held,  that  an  information  in 
the  nature  of  quo  warranto  will  lie  for  the  bailiff  of  a  court-leet,  being  a 
prescriptive  officer,  and  having  power  to  summon  and  select  the  jury. (A:) 


*SECTION  XII.  [*468] 

DIGNITIES. 
§  598.  Dignities  appendant  to  Land. 


§  598.  Dignities  are  another  species  of  incorporeal  hereditaments,  which 
being  originally  annexed  to  land,  are  reckoned  as  real  property ;  for  the 
possessors  of  such  dignities  were  in  right  of  those  estates  allowed  to  be 
peers  of  the  realm,  and  upon  the  alienation  of  the  same  passed  as  append- 
ant.(Z)     This  subject  may  be  considered  under  the  following  heads  : — 

(z)  Dy.  152  ;  2  Inst.  412 ;  8  Co.  47.  (a)  2  Roll.  Abr.  285. 

(6)  Lee's  case,  Carth.  169.  (c)  Lee  v.  Drake,  2  Salk.  468,  pi.  7. 

(d)  1  Mod  122.  (e)  Boytcr  v.  Dodswoilli,  6  T.  R.  681. 
(  f)  Arris  "v.  Stukely,  2  Mod.  2G0  ;  S.  C,  T.  Jo.  126  ;  1  Danv.  27  ;  2  Show.,  pi.  14. 

(e)  Howard  v.  Wood,  2  Lev.  245.  (/()  R.  v.  Mcin,  3  T.  R.  598. 

0)  R.  V.  Shcplicrd,  4  T.  R.  381.  (A)  R.  v.  Bingham,  2  East, 308. 

(/)  1  Com.  4U0. 


328 


crabb's  law  of  real  property. 


1.  How  distinguished. 

2.  How  claimed  or  created. 

3.  What  estates  may  be  had  in  a  dignity. 

4.  How  Jost  or  recovered. 


§  599.  Degrees  of  Nobility. 


§  599.  Persons  of  dignity  are  either  noble  or  under  the  degree  of  nobility, 
or  they  are  distinguished  into  superior  and  inferior  nobility.  The  superior 
nobility  are  distinguished  by  the  titles  of  duke,  marquis,  earl,  viscount, 
and  baron.  The  inferior  nobility  are  baronets,  knights,  esquires,  and  gentle- 
men, (w) 

Nobility  gives  so  high  a  dignity  to  the  person  possessing  it  as  to  supply 
both  his  Christian  and  surname  in  all  legal  instruments  ;  and  in  legal  pro- 
cess, the  omission  of  a  name  of  dignity  may  be  even  pleaded  in  abatement, 
and  where  a  *peer  has  move  than  one  name  of  dignity,  he  must  be 
L  ^"^-1  named  by  the  most  noble  ;(n)  but  no  temporal  dignity  of  any  foreign 
nation  can  give  a  right  to  a  higher  title  in  this  country  than  that  of 
esquire. (o)  Therefore  a  duke,  earl,  &c.,  of  another  kingdom,  are  not  to  be 
sued  by  those  names  here,  for  that  they  are  not  peers  of  Parliament.  But 
by  the  Act  of  Union  with  Scotland,  5  A.  c.  8,  art.  4,  it  is  declared  that  all 
peers  of  Scotland  shall  be  peers  of  Great  Britain,  and  rank  next  after  those 
of  the  same  degree  at  the  time  of  the  Union,  and  shall  have  all  the  privi- 
leges of  peers  except  sitting  in  the  House  of  Lords,  and  voting  at  the  trial 
of  a  peer  ;  and  the  Act  of  Union  with  Ireland,  39  &  40  Geo.  3,  c.  67,  art. 
4,  provides  that  the  peers  of  Ireland  shall,  as  peers  of  the  United  Kingdom, 
enjoy  all  privilege  of  peers,  except  sitting  in  the  House  of  Lords  and  at  the 
trial  of  a  peer,  and  that  the  peers  of  Ireland  at  the  time  of  the  Union  shall 
have  precedency  next  after  the  peers  of  the  same  degree  in  great  Britain, 
and  all  peerages  of  Ireland  and  of  the  United  Kingdom  subsequently  created 
are  to  rank  according  to  the  dates  of  their  creation.  As  to  the  precedence  of 
foreign  dukes,  earls,  &c.,  it  is  said  that  it  differs  not,  though  they  have-not 
voice  in  Parliament. (p) 


II.  lijclo  acqutrctr  or  treatctr. 


§  GOO.  Acquired  by  Proscription. 

601.  Creation  by  Writ. 

602.  Creation  by  Patent. 


603.  Creation  by  Act  of  Parliament. 

604.  Acquired  by  Marriage. 


(m)  2  Inst.  583.  («)  2  Hawlc.  P.  C.  185. 230. 

(o)  2  Inst.  6G7  ;  Spelm.  Gloss,  voc.  Armiger  ;  Dodd.  Nob,  144. 
(/>)  See  Hal.  MSS.,  cited  Harg.  Co.  Litt.  16,  b.,  n.  (92.) 


•  DIGNITIES.  329 

§  600.  A  man  may  have  a  title  to  nobility  or  dignity  by  prescription  or 
tenure, (f/)  and  in  some  few  cases,  as  that  of  the  earldom  of  Arundel,  this 
claim  has  been  allowed ;(r)  *and  the  estates  and  dignities  attached  psc-.^rv-i 
the  castle  of  Arundel  are  now  vested  in  the  family  of  the  Duke  L  J 
of  Norfolk.  In  the  late  case  of  the  Berkeley  peerage  this  claim  was 
rejected. (s) 

601.  So,  a  man  may  be  created  by  writ,  as  if -the  queen  by  writ  of  sum- 
mons require  any  one  to  come  to  Parliament,  and  upon  that  he  sits  in  the 
House  of  Peers,  he  is  then  baron, (A  and  this  Avas  the  ancient  way  of  crea- 
tion ;(^)  but  he  is  not  a  baron  if  he  die  before  the  return  of  the  writ,(?<)  or  if 
he  never  sit  in  Parliament  by  force  of  the  writ.(w) 

It  was  formerly  held,  that  as  dignities  Avere  annexed  to  land,  the  naming 
of  some  place  was  necessary  in  the  creation  of  a  dignity,  but  it  has  since 
been  decided  that  it  is  not  necessary,  and  in  R.  v.  Knollys,(.i;)  it  is  said  that 
the  naming  a  place  is  not  essential  in  the  creation  of  a  dignity,  and  the  earl- 
dom of  Rivers  is  cited  as  an  instance  where  no  place  is  named.  So,  in 
Lord  Purbeck's  case,('j/)  a  distinction  was  taken  between  ancient  honours  as 
being  feodary  and  officiary,  and  having  relation  to  a  place,  and  modern  dig- 
nities, as  being  titular  and  personal,  notwithstanding  the  formality  of  nam- 
ing a  place  in  the  creation. 

So,  in  the  opinion  of  some,  he  must  be  invested  according  to  the  usual 
form  of  investiture,  in  order  to  make  the  dignity  hereditary. (2;) 

So,  the  eldest  sons  of  peers  may  be  called,  by  writ  of  summons,  by  the 
name  of  title  of  a  barony  vested  in  their  fathers,  because  in  that  case  there 
is  no  danger  of  his  children's  losing  their  nobility  in  case  he  never  takes 
his  seat,  for  they  will  succeed  to  their  grandfather ;  and  where  the  father's 
barony  is  limited  to  him  and  the  heirs  male  of  his  body,  and  his  eldest  son 
is  called  up  to  the  House  of  Lords  *by  writ,  with  the  title  of  this  p*^«i-| 
barony,  the  writ  in^this  case  will  not  create  a  fee  or  general  estate,  so  L  J 
as  to  make  a  female  capable  of  inheriting  the  title  ;  but  upon  the  death  of 
the  father  the  two  titles  unite  and  become  one  and  the  same.(«) 

602.  So,  a  man  may  be  created  duke,  marquis,  earl,  viscount,  baron,  or 
baronet,  by  letters-patent  ;(6)  and  the  first  case  of  such  a  creation  was  10th 
Oct.  11  R,  2  ;  so,  the  queen  may  create  an  Irish  peer  under  the  Great  Seal 
of  England,  but  this  must  be  by  express  words,  being  a  special  act  of  pre- 
rogative, for  properly  Avhat  is  done  under  the  Great  Seal  of  England  relates 
to  England  ;(c)  but,  if  the  queen,  by  letters  of  safe  conduct,  denization,  &c. 
to  a  noble  foreigner,  names  him  by  his  title,  this  does  not  make  him  a  peer 
of  the  realm  or  noble  here.((/)  Although  a  man,  who  is  created  a  baron  by 
writ,  must  sit  in  Parliament  in  order  to  be  noble,  yet  the  case  of  nobility  by 
letters-patent  is  different,  for  by  them  the  creation  is  perfect,  and  the  blood 
is  ennobled  without  sitting;  and  therefore,  in  Lord  Banbury's  case,(e)  held, 

(9)  1  Inst.  16.  (»•)  1  BiJstr.  196. 

(s)  First  Lords'  Rep.  on  the  Di"^.  of  a  Peer,  444  et  seq, ;  Nicholas's  L'Isle  Peerage,  361 
et  seq.     See  also  2  Salk.  509  ;  Skinn.  437. 

(t)  1  Inst,  1 6  b.  (m)  lb.     See  also  12  Co.  70.  (x)  1  Ld.  Raym.  ]  3. 

Oy)  Show.  P.C.I .  (z)  See  3  Cru.  Dig.  138,  4th  ed.  («)  5  B.  P.  C.  509. 

(i)  1  Inst.  16,  b.  (0  R.  V.  Knollys,  2  Salk.  510. 

(d)  Calvin's  case,  7  Co.  16  a.  (e)  R.  v,  Knollys,  1  Ld.  Raym.  10. 


330 


crabb's   law  of   real   property. 


that  a  peerage  claimed  under  letters-patent  is  not  triable  by  record  of  Par- 
liament. 

603.  So,  a  nnan  may  be  made  noble  by  Act  of  Parliament  ;(^)  but,  if  a 
noble  foreigner  be  naturalized  by  Parliament,  this  will  not  make  him  noble 
here  ;(/i)  so,  if  a  duke,  baron,  &c.  of  Scotland,  (before  the  Union)  or  another 
kingdom,  had  a  son  and  heir  born  in  England,  by  which  he  is  natural  born, 
he  Avill  not  be  noble  here.((/) 

604.  So,  a  dignity  may  be  obtained  by  marriage,  as  if  a  duke,  marquis, 
r*Af9l  ^^'*^'  ^^'  '^^''"■'^s,  the  wife  shall  be  noble  for  *her  life  ;{i)  and  if  a 

.  L  'J  duke,  earl,  &c.,  who  has  the  dignity  in  fee,  has  not  a  son,  but  seve- 
ral daughters,  the  queen  may  confer  the  dignity  on  him  who  marries  any  of 
the  daughters,  as  she  pleases  ;(^)  but  in  respect  to  a  female  there  is  a  dif- 
ference when  she  is  noble  in  her  own  right,  and  when  by  marriage,  for  if 
noble  in  her  own  right,  she  will  still  remain  so,  though  she  marry  a  com- 
moner;(/)  but  if  she  be  noble  by  marriage  only,  then  by  marrying  a  com- 
moner she  loses  her  dignity. (/)  If,  however,  she  marries  a  peer,  though 
her  husband  be  of  a  loAver  peerage  than  herself,  yet,  according  to  the  letter, 
she  will  retain  her  own  dignity  ;  as,  if  being  a  duchess  by  marriage  she 
marries  a  baron,  yet  she  continues  a  duchess  ;(???)  though,  in  this  case,  it  is 
said,  she  shall  have  precedency  only  according  to  the  rank  of  her  hus- 
band ;(??)  but  it  is  said,  in  some  of  the  books,  that  if  a  woman  noble  by  birth 
marry  one  of  inferior  nobility,  she  shall  be  styled  by  the  dignity  of  her 
second  husband. (o)  If  a  queen  dowager  takes  a  husband,  noble  or  not 
noble,  she  shall  not,  by  her  subsequent  marriage,  lose  her  dignity  ;(;;)  so, 
though  a  woman  who  is  noble  in  her  own  right  will  continue  so  notwith- 
standing her  marriage  with  a  commoner,  yet  her  dignity  communicates  no 
rank  or  title  to  her  husband, ((jr)  see  further  infra,  §  605. 


[  *473  ]  *iii.  ^:^\mt  xrottitc  mns  tc  itatr  in  a  Disniti),  ant»  other 

XiTCitinits. 


§605. 

606. 

607. 

COS. 

60!). 
610, 


Different  Ways  of  having  an  Inheri- 
tance in  a  Dignity. 

Distinction  between  Creation  by 
Writ  and  Creation  by  Patent. 

Limitations  of  Dignities. 

Entailable. 

When  not  entailable. 

Entail  not  barrable. 

Estate  ill  Remainder, 

Estate  for  Life. 

Estate  pur  autre  Vie. 


§  6n.  Not  subject  to  Curtesy. 

612.  Not  subject  to  Dower. 

613,  Not  alienable. 

Not  to  be  surrendered. 
Not  cxtinguishable. 
61'4.  Descent  of  Dignities. 
No  Posscssio  Fratris. 

615.  Eldest  Sons  created  Barons. 

616.  Dignities  not  partible. 

617.  Modes  of  determining  an  Abeyance, 


§  605.  A  man  (says  Lord  Coke)  may  have  an  inheritance  in  a  title  of 

(g-)  W,  Jo.  10.  (/O  Dodd.  Nob,  4,  (i)  1  Inst.  16,  b.  (i)  12  Co.  111. 

(0  Dy.  79 ;  1  Inst.  16,  b.  (m)  1  Inst.  16;  2  Inst.  50. 

(n)  Ow.  82 ;  but  see  as  to  precedency,  4  Inst.  361. 

(o)  See  Ow.  82 ;  Bendl.  37."  (p)  2  Inst.  50.  (?)  1  Inst.  326. 


DIGNITIES.  331 

nobility  and  dignity  three  manner  of  ways  :  by  creation,  b)'-  descent,  and  by 
prescription. (»•)  While  dignities  were  annexed  to  lands,  the  person  seised 
of  the  lands  had  the  same  estate  in  the  dignity  ;  so,  dignities  created  as  well 
by  patent  as  by  writ,  have  many  of  the  incidents  of  real  property. (r) 

Dignities  created  by  writ  descend  to  females  as  well  as  to  males  ;(s)  but, 
though  they  are  said  to  be  in  fee,(/)  yet  it  is  not  strictly  so,  for  a  person  hav- 
ing a  dignity  of  this  kind  is  not  tenant  in  fee  simple  of  it,  so  that  it  should 
descend  to  the  heirs  general,  lineal,  or  collateral  of  the  person  last  seised; 
on  the  contrary,  a  dignity  of  this  kind  is  only  inheritable  by  such  of  his  heirs 
as  are  lineally  descended  from  the  person  first  summoned  to  Parliament,  and 
not  to  any  other  of  his  heirs. (t<) 

606.  Creation  by  writ  is  said  to  have  one  advantage  over  that  by  patent, 
that  a  person,  created  by  writ,  holds  the  dignity  to  him  and  his  heirs,  for  the 
word  "  heirs"  is  not  *necessary  to  a  creation  of  nobility  by  writ,  for  |-^i-,j^-i 
when  a  man  is  called  to  the  upper  House  of  Parliament  by  writ,  he  i-  '  -^ 
is  a  baron,  and  hath  inheritance  therein  without  this  word ;  yet  the  queen 
may,  by  the  writ,  limit  the  general  state  of  inheritance  created  by  the  law 
and  custom  of  the  realm  ;(.r)  but,  if  he  be  created  by  writ,  there  must  neces- 
sarily be  the  word  "  heirs,"  otherwise  he  has  no  inheritance. (a:) 

607.  If  a  dignity  be  created  by  letters-patent,  the  state  of  inheritance 
must  be  limited  by  apt  words,  otherwise  the  grant  is  void.(?/) 

A  name  of  dignity  may  be  entailed  within  the  Statute  de  JJonis,  as  dukes, 
marquisses,  earls,  viscounts,  barons,  because  they  were  originally  named  of 
some  county,  manor,  town,  or  place,  (see  ante,  §  600,)  and  consequently 
concerned  land  ;(2)  thus  it  was  resolved,  that  when  Ralph  Nevil  was  by 
letters  created  Earl  of  Westmoreland  to  him  and  the  heirs  male  of  his  body, 
an  estate  tail  was  thereby  raised,  and  not  a  fee  conditional  at  common  lavv;(a) 
so,  a  dignity  may  not  only  be  entailed  at  its  first  creation,  but  also  a  dignity, 
originally  descendible  to  heirs  general,  may  be  entailed  by  an  Act  of  Parlia- 
ment upon  the  heirs  male  of  the  person  seised  thereof,(6)  therefore,  in  a 
dispute,  after  the  death  of  Henry  de  Vere,  Earl  of  Oxford,  respecting  the 
right  to  that  earldom,  between  Robert  de  Vere,  claiming  under  the  entail, 
created  by  the  16  R.  2,  as  heir  male  of  the  body  of  Aubrey  de  Vere,  and 
•Lord  Willoughby  de  Eresby,  claiming  as  heir  general,  the  judges,  whose 
assistance  was  called  in  by  the  House  of  Lords,  that  is,  the  Lord  Chief  Justice 
Crew,  Ld.  Chief  Baron  Walter,  Doddridge  and  Yelverton,Justices,  and  Baron 
Trevor,  were  unanimously  of  opinion,  "that,  although  the  earldom  of  Ox- 
ford was  originally  held  in  fee  simple  by  the  family  of  De  Vere,  yet  that  the 
honour  of  the  said  earldom  of  Oxford  was  entailed  upon  Aubrey  de  Vere 
and  his  heirs  male  by  the  Parliament  of  16  R.  2,  *and  that  an  estate  r-js^-.— i 
therein  was  sufficiently  raised  and  created  thereby,  and  was  so  re-  L  -' 
puted  and  enjoyed  by  many  descents  of  the  earls,  which  could  not  have 
been  (as  the  same  was  limited)  if  the  same  had  only  been  an  ordinance  of 

(r)  1  Inst.  16,  a.     See  also  Countess  of  Rutland's  case,  6  Co.  52,  53  ;  The  Prince's  case 
8  Co,  17  ;  4  Inst.  126.  (s)  Skinn.  436  et  scq. 

(/)  1  Inst.  6.  (m)  Id.  16,  b;  1  Wood.  37. 

{x)  Lord  Veseye's  case,  27  H.  6,  cited  1  Inst.  9,  b.  (y)  1  Inst.  16,  b. 

(z)  Id.  20,  a.  (a)  Ncvil's  case,  7  Co.  33.  (h)  Coll.  Claims  Peer.  173. 


332  crabb's  laav   of   real  property. 

Parliament ;  that,  therefore,  the  said  honour  descended,  and  then  of  right 
belonged  to  Robert  De  Vere  as  heir  male  of  the  said  Aubrey,  by  virtue  of 
the  entail."  (c) 

608.  It  was  resolved,  Pasch.  9  Jac.  1,  if  the  king  did  not  create  a  man  of 
some  place,  he  should  not  have  an  estate  tail,  but  a  fee  simple  conditional, 
which  should  be  forfeited  for  felony,  but  if  he  created  him  a  baronet  of  some 
place,  then  he  should  have  an  estate  tail  within  the  Statute  de  Donis.[d) 
But,  though  dignities  and  titles  are  thus  entailed  as  tenements  within  the 
statute,  yet  neither  the  donee  nor  his  issue  could  bar  the  entail,  by  fine  or 
recovery,  before  the  3  &  4  W.  4,  c.  74,  (see  Dig.  P.  ii.  tit.  Fines  and 
Recoveries,)  nor  by  any  other  means,  as  might  or  may  now  be  done  under 
that  Act  in  the  case  of  other  entailable  things. (e) 

609.  An  estate  in  a  dignity  may  also  be  limited  to  a  person  in  remainder, 
after  the  determination  of  an  estate  tail ;  thus  the  earldom  of  Northumber- 
land was  granted  to  Thomas  Percy  and  the  heirs  male  of  his  body,  and 
for  default  of  such  issue,  to  Henry  his  brother,  and  the  heirs  male  of  his 
body.(/) 

610.  So,  the  queen  may  create  either  man  or  woman  noble  for  life,(^)  but 
not,  it  is  said,  for  years,  because  then  it  might  go  to  executors  and  adminis- 
trators. (A) 

Whether  a  dignity  may  be  granted  pur  autre  vie  is  not  so  settled.  In 
.  -,  an  early  case  it  is  intimated  that  a  man  xndcy  be  *noble  during  the 
L  -'  life  of  another  ;(i)  and  Mr.  Justice  Dodderidge,  in  his  Treatise  on 
Dignities,  observes,  that  the  king  may  grant  peerages  pur  autre  vie,  "  as 
(howeveV,  he  adds  by  way  of  qualification)  it  has  been  said."  In  a  late 
case(A;)  it  is  observed,  "  that  the  Crown  may  grant  a  peerage  for  life,  not  only 
of  the  grantee,  but  also  pur  autre  vie.  The  most  common  way  of  doing  this 
is  by  a  grant  to  the  son  during  the  life  of  the  father,  by  calling  the  son  by 
another  title  to  this  house,  such  a  title  will  enure  during  the  father's  life, 
and  on  his  death  the  succession  will  operate  by  way  of  merger,  so  that  the 
two  will  become  but  one  dignity.  (See  ante,  §  601).  "But  although  this 
is  the  common  and  usual  way,  it  is  not  the  only  way  in  which  such  a  title 
may  be  granted.  The  cestui  que  vie  may  be  the  ancestor  or  not,  and  then 
observe,  my  lords,  what  is  the  consequence  of  this  singular  reservation  ;  a 
man  does  not  know  in  one  day  whether  he  shall  be  noble  or  commoner  the 
next;"(/)  so  in  the  same  case  it  was  said,  "  Is  the  blood  of  a  man  to  be  en- 
nobled only  for  a  time  ?  I  say  no,  for  being  once  ennobled,  it  must  be  so  till 
crime  has  worked  a  forfeiture  of  his  nobility. "(hi) 

611.  It  seems  also  doubtful,  whether  a  dignity  is  subject  to  curtesy. 
While  dignities  Avere  annexed  to  castles,  manors,  &c.,  the  husband  of  a  wo- 

(c)  Coll.  Claims  Peer.  173.     See  also  W.  Jo.  96. 

(d)  12  Co.  81.  (e)  Lord  Purbeck's  case,  Show.  P.  C.  1 ;  Coll.  Claims,  293. 
(/)  Nevil's  case,  7  Co.  33.  {g)  Reynel's  case,  9  Co.  97, 

(A)  1  Inst.  16,  b ;  but  sec  cont.,  Dodd.  Nob.  401. 

(t)  52  H.  6,  29.  (k)  Earl  of  Devon's  case,  2  Dow  &.  Clark,  203, 

{I)  Per  Lord  Brougham,  C,  lb.  {m)  Per  Lord  Wynford,  lb. 


DIGNITIES.  333 

man  possessed  of  such  castles,  &c.,  was  bound,  among  other  services  due  to 
the  Crown,  to  attend  in  Parliament,  and,  consequently,  enjoyed  the  dignity 
during  the  joint  lives  of  himself  and  his  wife,  of  which  some  early  examples 
are  cited  by  Mr.  Cruise,  3  Dig.  150,  4th  ed. ;  but  in  the  time  of  Lord  Coke 
this  point  was  much  discussed,  and  by  him  is  left  doubtful  ;(n)  but  the 
better  opinion  in  modern  times  is  that  there  is  no  curtesy  in  titles  of 
honour,  (o) 

*612.  So,  a  woman  shall  not  be  endowed  of  a  family  mansion,  pjj:./,«-| 
which  is  a  caput  baronix  or  the  capital  mansion  ;(/>)  but  this  is  to  L  J 
be  understood  as  applicable  only  to  baronies  by  tenure,  of  which  it  is  said 
that  there  is  only  one  now  remaining,  namely,  the  barony  of  Arundel,  and, 
therefore,  creating  a  person  baron  by  a  title  taken  from  a  principal  mansion 
house  in  his  possession  will  not  make  the  house  caput  baronise,  so  as  to 
exclude  the  wife  from  dower.(<7) 

613.  Dignities  by  tenure  appear  to  have  been  formerly  alienable,  provi- 
ded such  alienation  was  made  with  the  consent  of  the  Crown  ;(r)  but  when 
dignities  ceased  to  be  annexed  to  the  possessions  of  land,  and  came  to  be 
considered  as  personal  inheritances,  the  right  of  alienation  ceased,  and  it 
became  a  settled  rule  that  a  dignity  was  an  hereditament,  inherent  in  the 
blood  of  the  first  grantee,  and  his  descendants,  and  was  therefore  unalien- 
able ;(s)  therefore,  in  the  case  of  an  entail  they  cannot  be  barred. (/) 

So,  not  surrendered  to  the  Crown  ;(<)  so,  it  seems  to  be  now  settled,  that 
it  will  not  be  extinguished  by  the  acceptance  of  a  new  title,  "for  the  greater 
dignity  dolh  never  drown  the  lesser  dignity,  but  both  stand  together  in  one 
person,  and  therefore,  if  a  knight  be  created  a  baron,  yet  he  remaineth  a 
knight  still ;  and  if  the  baron  be  created  an  earl,  yet  the  dignity  of  a  baron 
remains,  e^  sic  de  casteris  ^^\i(^  although  this  point  was  doubted  in  Lord 
Delawarre's  case,(:r)  yet  it  was  settled  in  the  case  of  the  barony  of  Wil- 
loughby  de  Broke  ;(?/)  so,  where  a  person  having  a  barony  by  writ  is  made 
an  earl,  held,  contrary  to  a  former  supposition,  that  the  earldom  will  not 
attract  the  barony,  but  at  his  death,  leaving  a  daughter  only  and  a  p#  j^ot 
younger  *brother,  the  barony  would  descend  to  the  daughter,  and  L  J 
the  earldom  to  the  younger  brother  ;(^)  so,  if  the  earldom  becomes  extinct, 
the  barony  will  descend  to  the  lieir.(«^ 

614.  The  descent  of  dignities  by  tenure  was  guided  by  the  same  rules 
as  regulated  the  descent  of  the  castles  and  manoi*s,  &c.,  to  which  they  were 
annexed,  as  to  which  see  post.  Title  to  Things  Real. 

The  descent  of  dignities  created  by  writ  differs  from  the  descent  of  lands, 
inasmuch  as  there  can  be   no  other  possession  had  thereof  but  such  as 

(n)  1  Inst.  29,  b.  (o)  Harg.  Co.  Litt.  20,  h,  n.  (1). 

(p)  1  Inst.  31.  b. 

Ol)  Gerard  v.  Gerard,  1  Ld.  Raym.  72  ;  S.  C,  5  Mod.  64 ;  3  Lev.  401. 
()■)  4  Inst.  126  ;  Ryl.  Plact.  Pari.  .547. 

(s)  3rd.  Rep.  on  the  Dig  of  a  Peer,  p.  ]  7.  Sec  Journ.,  vol.  4,  p.  150 ;  also  3  Cruise,  Diff. 
15.3,  4th  ed. 

(/)  Purbeck's  case,  Show.  P.  C.  1  ;  Coll.  Claims,  2.93. 

{11)  2  Inst.  594.  (x)   11  Co.  1 ;  Coll.  Claims,  122. 

(y)  Coll.  Claims,  321.  (i)  Coll.  1()2.  (a)  Id.  286. 

November,  1846 22 


334  crabb's   law   of   real   propertt. 

descends  (as  to  be  a  duke,  marquis,  earl,  viscount,  or  baron)  to  a  man  and 
his  heirs  ;  therefore,  before  the  3  &  4  W.  4,  c.  27,  (abolishing  this  dis- 
tinction,) there  could  be  no  possessio  fratris  of  a  dignity  to  make  the 
sister  inherit,  but  the  younger  brother  being  heir  to  his  father  should 
inherit  the  dignity,  inherent  to  the  blood,  as  heir  to  him  that  was  first 
created  noble. (6) 

615.  "Where  baronies  are  created  by  writ  of  summons  to  the  eldest  sons 
of  peers,  by  the  name  of  baronies  vested  in  their  fathers,  (see  ante,  §  601,) 
they  are  held  to  be  hereditary  in  ihe  blood  of  the  persons  so  summoned, 
and  descendible  to  their  heirs ;  therefore,  if  the  son  dies  in  the  lifetime  of 
his  father,  the  dignity  will  descend  to  his  son  ;(c)  but  if  the  father  has  only 
an  estate  tail  in  the  barony,  the  estate  of  the  son,  though  summoned  by  writ, 
is  not  enlarged,  nor  made  a  fee,  descendible  to  heirs  in  general;  therefore, 
where  the  eldest  son  was  summoned  by  writ  in  the  name  of  a  barony  not 
vested  in  his  father,  it  has  been  determined  that  his  son  could  not  establish 
his  claim  to  be  summoned  by  writ.(c) 

616.  As  dignities  are  of  an  impartible  nature,  when  any  dignity  descends 
_-.  to  coheirs,  it  falls  into  suspense  or  abeyance. (f/)     *This.  abeyance 

L  J  may  be  determined  two  ways:  first,  by  the  Crown,  the  fountain  of 
honour  and  dignity,  conferring  it  on  whom  the  sovereign  pleases  ;  secondly, 
by  the  death  of  all  the  coheirs  but  one.  A  remarkable  instance  of  the 
exercise  of  the  prerogative  in  reviving  titles  after  an  abe3-ance,  took  place 
in  the  person  of  Mr.  Norborn  Berkley,  who  was  called  to  the  House  of 
Peers  in  right  of  the  old  barony  of  Botetourt,  after  an  abeyance  of  several 
centuries,  and  was  allowed  to  sit  according  to  the  antiquit}'  of  that  barony  ;(e) 
and  it  has  been  decided  that  the  queen  may  dispose  of  the  dignity  to  either 
one  of  the  coheirs  at  her  pleasure,  but  not  to  a  stranger  ,'(y)  so,  it  has  been 
held,  that  it  is  in  her  Majesty's  power  to  suspend  the  dignity,  but  not  to 
extinguish  the  same.(ir)  As  to  the  second  case,  where  there  is  but  one  co- 
heir, it  has  been  decided  that  the  attainder  of  one  of  the  coheirs  for  high 
treason  did  not  terminate  the  abeyance,  and  give  the  other  a  right  to  the 
barony. (o') 

.  017.  "When  the  abeyance  of  a  barony  is  terminated  in  favour  of  a  com- 
moner, a  writ  of  summons  is  directed  to  be  issued  to  him  by  the  style  and 
title  of  the  barony  which  is  in  abeyance  ;  but  where  the  person  in  whose 
favour  an  abeyance  is  determined  is  already  a  peer,  and  has  a  higher  dignity, 
then  the  barony  is  confirmed  to  him  by  letters-patent,  and  in  the  case  of  a 
female,  the  abeyance  is  also  terminated  by  letters-patent, (/i) 

Fonnerly  it  was  the  practice  to  confirm  the  barony  to  the  coheirs  and  his 
or  her  heirs,  but  now  it  is  more  properly  confirmed  to  the  heirs  of  his  or 

{h)  I  Inst.  15,  b. ;  Lord  Grer's  case,  Cro.  Car.  GO,  recognizing^  RatclifTs  case,  3  Co.  42. 
'f)  Barony  of  Sydney,  printed  case,  lTS-2.     See  also  the  L'IsIe  Peerage  case,  p.  14. 
{d)  F.  N.  B.  tit."Part"ition,  1  Inst.  165,  a.;  '2  Diigd.  Bar.  3G.3. 

(e)  Cas.  in  Dom.  Free,  for  1761.     See  furtlier,  Harg.  Co.  Lilt.  165,  a.,  n.  (6j ;  2  Dugd. 
Bar.  363  ;  Journ.,  vol.  15,  p.  44-2  et  seq. 

.'/)  Barony  of  Willouirhby  de  Broke,  Coll.  322. 

:^)  Barony  of  Clifford,  Coll.  306.  (A)  3  Cruise,  192,  4th  ed. 


DIGNITIES. 


335 


her  body,  for  no  one  can  be  heir  of  the  body  of  the  person  in  whose  favour 
the  abeyance  is  determined,  without  being  also  Hneally  descended  from  the 
person  first  summoned. (/i) 


*iv.  f^ob)  lost  or  rccoterctr. 


[*480] 


§  618.  Forfeited    by  Attainder    for   Trea- 
son. 
By  Attainder  for  Felony. 

619.  Corruption  of  Blood. 

620.  Honour  taken  away  for  Poverty. 


620.  By  what  other  Modes  a  Dignity  may 

be  lost,  or  otlicrwise. 

621.  Restoration  of  Blood. 

622.  Disputed  claims,  how  tried. 
By  Record. 


622.  By  a  Jury. 


§  618.  A  peer  cannot  be  degraded  but  by  attainder  or  by  Act  of  Parlia- 
ment ;  a  peerage  may,  however,  be  lost  for  want  of  heirs,  but  a  peer  cannot 
divest  himself  of  his  honour. (t) 

Dignities  of  every  kind  are  forfeited  by  attainder  for  treason,  and  can  be 
revived  only  by  a  reversal  of  the  attainder,  but  where  a  person  was  tenant 
in  tail  of  a  dignity,  remainder  in  tail  to  another,  and  the  first  tenant  in  tail 
was  attainted  of  high  treason,  the  dignity  was  held  forfeited  as  to  him  and 
his  descendants,  but  not  as  to  him  in  remainder ;(/?)  so,  a  dignity  created  by 
writ,  and  descendible  to  heirs  in  general,  is  also  forfeited  by  attainder  for 
felony  of  the  person  possessed  of  it,  for,  in  the  words  of  Lord  Coke,  "  If  he 
was  noble  or  gentle  before,  he,  and  all  his  posterit}^  are  by  the  attainder 
made  ignoble  ;(/)  but  dignities  in  tail  are  not  forfeited  by  attainder  for  felony, 
except  during  the  hfe  of  the  person  attainted,  for  the  26  FI.  8,  c.  13,  which 
subjects  estates  tail  to  forfeiture  for  high  treason,  does  not  extend  to  attain- 
ders for  felony,  as  in  the  case  of  Lord  Stourton,(m)  and  again  in  Earl  Fer- 


rer s  case 


,(n) 


619.  The  blood  of  a  person  attainted  being  corrupted,  no  pedigree  can  be 
derived  through  him  ;(o)  therefore,  where  a  *dignity  descends  to  r-f^jc,-,-, 
heirs  general,  the  attainder  for  treason  or  felony  of  any  ancestor  of  l.  J 
a  person  claiming  such  dignity,  though  the  person  attainted  was  never  pos- 
sessed of  the  dignity,  will  bar  his  claim,  for  the  blood  of  the  person  being 
corrupted,  no  pedigree  can  be  derived  through  him  ;(jo)  and  so  decided  in 
the  case  of  the  Baronj'^  of  Lumley  ;(5')  but  this  does  not  extend  to  entailed 
dignities,  therefore,  a  dignity  may  be  claimed  by  a  son  surviving  an  attainted 
father,  who  never  possessed  the  dignity  ;(r)  for  the  son  may  claim  from  the 
first  grantee  per  formam  doni,{^s\  and  so  it  has  since  been  decided  ',{t)  but 

(h)  3  Cruise,  192,  4th  ed. 

(i)  R.  V.  Knowles,  12  Mood.  56.         {k)  Ncvil's  case,  7  Co.  33  a.;  2  Coll. Peer, 321. 

(i)  1  Inst.  41.  (?/?)  Journ.,vol.  1,  p.  731. 

(n)  Eden,  Rep.  Append.  (o)  1  Inst.  391. 

{p)  Lumley's  case,  2  Hale,  P.  C.  356.  {q)  Cited,  3  Cruise,  159,  4th  ed. 

(r)  Lord  Lumley's  case,  cited  3  Co.  10  ;  2  Hale,  P.  C.  356. 

(s)  Digby's  case,  8  Co.  166  a.         (()  Duke  of  Athol's  case,  Lords'  Journ.,  vol.  30. 


336  crabb's   law    of    real  property. 

where  the  person  attainted  survives  the  ancestor  who  possessed  the  dignity, 
it  has  been  decided  that  the  dignity  reverted  to  the  Crown,  and  could  not 
be  claimed  by  any  collateral  relative  of  the  person. (w) 

620.  As  every  one  of  the  nobility  is  presumed  in  law  to  have  sufficient 
freehold  ad  sustinendumnonien  et  onus,  ii^  one  that  is  noble  want  possessions 
to  maintain  his  estate,  it  has  been  held  reason  sufficient  to  degrade  him,  as  in 
the  case  of  George  Nevill,  Duke  of  Bedford,  who  was  degraded  by  act  of 
Parliament  ;(a:)  but  a  dignity  can  be  taken  away  by  Act  of  Parliament 
onl3',(?/)  it  cannot  be  taken  away  by  order  of  the  lords  in  Parliament  •,[z\  so, 
a  dignity  or  nobility  cannot  be  extinguished  except  by  Act  of  Parliament,  if 
it  be  not  forfeited, (o)  or  unless  lost  by  marriage,  as  in  the  case  of  a  woman, 
see  ante,  §  904. 

So,  a  dignity  will  not  be  extinguished  by  acceptance  of  another  dignity, 
(see  ante,  §  613  ;)  so,  a  dignity  shall  not  be  lost,  as  in  the  case  of  lands,  by 
r*4ft9"l  '^^""Claim,  before  the  3  &  4  W.  *4,  c.  27,  (see  Dig.  P.  iii.  tit.  Limi- 
L  -^  tations,)  for  the  statutes  of  limitation  did  not  extend  to  it  ;(i)  so,  not 
even  in  case  of  adverse  possession  by  persons  not  entitled. (c) 

621.  In  cases  of  attainder  for  treason  or  felony,  the  corruption  of  blood 
can  be  restored  by  Parliament  only.  Restitution  may  be  either  as  to  the 
corruption  of  blood  only,  or  it  may  be  a  general  restitution  not  only  to  blood, 
but  also  to  lands  and  honours. (cZ)  When  a  person  is  outlawed  for  treason  or 
felony  the  blood  is  also  corrupted,  but  may  be  restored  either  by  Act  of  Par- 
liament, reversal  of  the  outlawry,  or  writ  of  error.  Formerly  a  writ  of  error 
to  reverse  an  outlawry  in  a  criminal  matter  was  held  to  be  merely  ex  gratia 
regis,  and  not  grantable  ex  debito  jiistitise  ;{€)  afterwards  it  was  held  to  be 
grantable  as  matter  of  right  in  all  cases  under  treason  and  felony, (y)  but 
now  it  cannot  issue  without  a.  Jiat  from  the  Attorney-General. (^o-j 

622.  If  there  be  a  dispute  whether  a  man  be  a  peer  or  no,  it  shall  be  tried 
by  record  of  Parliament, (/i)  for  generally  all  matters  of  record  shall  be  tried 
by  the  record  itself  ;(<)  but  this  applies  properly  to  baronies  by  writ,  and 
where  the  baron  has  taken  his  seat,  (see  ante,  §  601,)  for  unless  he  has 
taken  his  seat  it  cannot  appear  by  record  ;(J)  but  it  is  different  with  baronies 
by  patent,  for  by  them  the  creation  is  perfect  and  the  blood  is  ennobled  with- 
out sitting  ;  therefore,  it  has  been  held  that  a  peerage  claimed  under  letters- 
patent  is  not  triable  by  the  record  of  Parliament,  but  must  be  questioned  by 
pleading  non  concessit  ;{k\  and  where  a  man  claims  by  descent,  though  he 
ought   to   produce    the    patent    of   creation,    yet   being   a    matter    of  fact 

-,  *whether  A.  is  the  son  of  B.  or  no,  it  is  triable  jjer  pais,  in  the  same 
L         -^  manner  as  countess  or  no  countess,  where  one  is  a  countess  by 


marriage.  (/) 


(?/)  Airlie  earklom,  printed  case,  1812.     See  further  3  Cruise,  159  et  seq.,  4th  ed. 

(z)  12  Co.  107  ;  4  Inst.  355  ;  Rot.  Pari.  vol.  6,  p.  173. 

(y)  Earl  of  Shrewsbury's  case,  12  Co.  106  b,         {z)  2  Salk.  511.         (a)  Skinn.  437. 

(h)  Skinn.  437. 

(c)  Barony  of  Willoughby  of  Parham,  Lords'  Journ.,  vol.  31,  p.  358 ;  3  Cruise,  184,  4th 
ed.  {(1)  3  Inst.,  c.  106  ;  Hale,  P.  C,  c.27. 

(e)  1  Vern.  170;  2  Burr.  25,  50.  (/)  Salk.  264.  {g)  4  Burr.  2551. 

(J>)  1  Inst.  16  b.  (i)  9  Co.  31  a.  (j)  1  lust.  16  b. 

I^k)  R.  V.  Knolleys,  1  I.d.  Raym.  10. 

(/)  Skinn.  520.     See  also  the  Countess  of  Rutland's  case,  6  Co.  33. 


FRANCHISES.  337 

If  any  one  becomes  heir  to  a  barony  and  be  not  summoned  to  Parliament, 
he  may  sue  to  the  queen  by  petition  of  right,  and  thereupon  it  will  be  refer- 
red to  the  Lords. (??i) 

As  to  determining  an  abeyance,  see  ante,  §  617. 


SECTION  XIII. 

FRANCHISES. 

§  623.  A  franchise  is  another  species  of  incoporeal  hereditament,  which 
may  be  considered  under  the  following  heads  : — 

1.  The  nature  of  a  franchise,  and  its  different  kinds. 

2.  How  claimed. 

3.  How  lost  or  destroyed. 


I.  Mature  of  a  iFmnchtse,  auti  tUc  tiiffcrcnt  3Xmtis. 

§  623.  Definition  of  a  Franchise.  (    §  623.  Different  Kinds. 


§  623.  A  franchise,  sometimes  called  a  liberty,  is  a  "  royal  privilege,  or 
a  branch  of  the  queen's  prerogative,  subsisting  in  the  hands  of  a  subject. "(n) 
Of  franchises  there  are  divers  kinds,  which  being  more  or  less  connected 
with  land,  are  here  entitled  to  notice. 


*I.  STo  Ijabc  n  iFovcst,  ©Jjacc,  or  SSfaircn.  [*484] 


§  624.  What  is  a  Forest, 

625.  What  is  tlie  Purlieu  oftlie  Forest. 

626.  Nuisances,  &.c.  in  the  Forest. 


§  627.  Wliat  Wood  esteemed  Vert. 
Wlio  may  cut  Wood. 
628.  Land  Revenue  oftlie  Crown. 


629.  Chace  and  Warren. 


§  624.  A  forest  is  a  circuit  of  ground  properly  under  the  queen's  protec- 
tion, for  the  peaceable  living  and  abiding  of  beasts  of  venery  and  chace,  and 
distinguished  not  only  by  having  bounds  and  privileges,  but  also  by  having 
courts  and  offices  ;(o)  but  it  is  not  proved  to  be  a  forest  by  being  called  a 
forest  in  records  &c.(o)  A  forest  may  be  in  the  hands  of  a  subject,  for  it 
may  be  granted  by  the  sovereign,  subject  to  the  forest  laws,  as  it  was  in  the 
case  of  the  Dukes  of  Norfolk  and  Lancaster,  who  had  forests  so  subject  to 
the  forest  laws  ;(j3)  but  if  the  jurisdiction   be  not  added  in   the   grant,   it 

(m)  W.  .To.  07.         (n)  2  Comm.  37.         (o)  Case  of  Leicester  Forest,  12  Co.  22. 
ip)  Manvv.  For.  Laws.  40  ;  4  Inst.  314. 


338  crabb's  law   of    real   property. 

becomes  only  a  chace,  and  trespassers  were  punishable  formerly  at  common 
law,((7)  but  now  under  the  provisions  of  the  1  &  2  W.  4,  c.  32,  see  Dig.  P. 
iii.  tit.  Grame.  If  a  forest  be  parcel  of  a  manor,  by  the  grant  of  the  manor 
cum  pertinentiis,  to  a  subject,  the  forest  does  not  pa3s.(rj 

625.  In  the  time  of  H.  2,  R.  1,  and  John,  many  lands  adjoining  to  the 
king's  forests  were  incroached  within  the  forest,  which  by  Charta  de  Foresta, 
made  17  John,  and  confirmed  9  Hen.  3,  were  to  be  disafforested,  and  after- 
wards bv  perambulations  made  in  the  time  of  Ed.  1,  and  Ed.  3,  were  disaffor- 
ested, and  the  lands  so  disafforested  are  named  the  purlieu  ox  pouraUee,  that 
is,  the  part  perambulated. (s)    Therefore,  the  purlieu  of  a  forest  is  land  adjoin- 

~i  i'^o'^o  a  forest,  *known  by  meers  immovable  upon  record,  which  was 
L  J  within  the  forest,  but  is  now  disafforested ;(/)  and  the  purlieu  is 
exempt  from  the  forest,  for  it  is  infra  metas,[u)  and  the  owner  may  cut  down 
his  wood,  plough  and  improve  his  land,  without  license,  for  the  purlieu  was 
disafforasted  only  for  the  benefit  of  the  owners,  and  as  to  others  it  remains  ;(x) 
so,  the  owner  of  the  land  or  wood  within  a  purlieu  may  hunt  with  dogs 
beasts  of  the  forest  found  in  his  soil,  and  he  may  kill  them  before  they  pass 
the  limit  '.{if)  so,  if  a  dog  fasten  upon  a  deer  before  she  gains  Jilum  forestie, 
and  she  drags  the  dog  into  the  forest  and  is  there  killed,  the  owner  may 
pursue,  and  take  the  deer  out  of  the  forest  ;(y)  but  a  man  who  has  land 
within  a  purlieu  cannot  by  gun  or  engine  forestaJ  the  beasts  of  the  forest  in 
their  return  to  the  forest  ;(2:)  so  he  cannot  kill  unseasonable  game  within 
the  purlieu  ;(z)  so,  not  in  the  fence-month.(z) 

626.  Anything  which  will  be  a  nuisance  by  law,  if  done  out  of  the 
forest,  will,  if  done  within  it,  be  a  nuisance,  as  to  erect  a  cottage  there 
without  a  license,  although  built  for  the  poor;(rt)  so,  inclosing  within  the 
forest  ;(o)  so,  setting  up  a  ferry  where  there  was  none  before  ;(6)  so,  carry- 
ing a  gun  to  kill  deer  ;(c)  so,  burning  heath,  &c.,  within  the  forest  ;(rf)  so, 
building  a  wall  whereby  the  highwaj-  is  straightened  ;(e)  so,  if  beasts  damage 
the  wood  of  B.  within  a  forest,  though  B.  ought  to  maintain  the  fence  ;  so, 
erecting  a  windmill  within  the  forest,  though  it  be  upon  his  own  soil  ;(y) 
so,  if  a  man  by  building,  inclosure,  or  using  any  liberty  or  privilege, incroach 
upon  the  rights  of  the  forest,  it  will  be  purpresture  and  an  offence  to  the 
forest  ;(o-)  so,  every  offence  which  tends  to  the  destruction  of  the  forest,  or 

-.  the  vert  or  venison  of  the  forest,  or  is  *a  breach  of  the  laws  of  the 
L  -^  forest,  Avill  be  a  nuisance  to  the  forest  ;(/i)  and  therefore,  noi  only  the 
hunting  or  killing  the  beasts  of  the  forest  which  destroys  the  venison,  and 
waste,  purpresture,  or  apart,  which  destroys  the  vert,  but  any  thing  which 
tends  to  such  destruction  will  be  a  nuisance  to  the  forest. (i) 

627.  All  wood  and  underwood  in  the  forest  is  esteemed  vert,  and  if  any 
cut  the  vert  of  the  forest  within  his  own  land  without  license,  it  is  waste  ;(A:) 
therefore,  a  man  cannot  cut  wood  in  his  own  land  within  the  forest,  or 

iq)  4  Inst.  314;  C'ro.  Jac.  loo  ;  Palm.  89,  90. 

(r)  Case  of  quo  Warranto,  Palm.  60.  (s)  Manw.  317  et  scq.      (0  Manw.  318. 

(«)  Id.87.  (x)  Id.  366.  (y)  Id.  371.  (s)  Id.  384. 

(a)  W.  Jo.  269.  (/>)  Id.  274.  {c)  Id.  275.  (</)  Id.  276. 

(e)  Id.  277.  (/)  Id.  293.  {p)  1  Inst.  277,  b. 

(A)  Manw.  266.  (i)  Id.  267.  (i)  Id.  147. 


FRANCHISES.  339 

destroy  the  coverts,  without  a  view  of  the  forester,  and  license  of  the  justices 
in  Ej're,  (now  by  10  G.  4,  c.  50,  the  Commissioners  of  the  Woods  and 
Forests,)  though  it  escheated  to  the  queen,  and  he  then  held  it  by  the  queen's 
patent,  for  the  patentee  shall  be  subject  to  the  forest  laws;(/)  but,  in  a  forest 
and  chase  in  the  hands  of  a  common  person,  the  owner  of  the  soil  may 
cut  his  wood  without  the  license  or  view  of  the  forester,  if  sufficient  vert  be 
left  ;(m)  so,  by  prescription,  a  man  may  cut  timber  in  his  own  wood  within 
the  forest  without  the  view  of  the  forester,(n)  so  far  at  least  as  regards  a 
forest,  though  allowed  m  respect  of  a  chace  ;  so,  an  officer,  as  it  seems,  may 
prescribe  to  have  so  much  wood  to  be  assigned  by  the  woodward  within  the 
forest  for  his  fuel.(o) 

If  the  cutting  of  vert  or  covert  within  a  forest  be  waste,  the  destruction  of 
it  will  be  still  more  so  ;  and  therefore,  if  a  man  cut  his  wood  by  license  within 
the  forest,  and  afterwards  do  not  inclose  the  wood  with  a  sufficient  fence, 
whereby  it  be  destroyed  by  beasts,  the  destruction  of  the  wood  will  be 
waste  ;{p)  so,  if  he  assart,  that  is,  eradicate,  his  woods,  and  convert  his  land 
to  tillage,  that  will  be  more  *heinous  waste  ;(</)  and,  if  he  convert  [-ijt^a~-i 
meadow  or  pasture  within  a  forest  surrounded  \\nth  coverts,  to  arable,  L 
it  will  be  an  apart  ;(r)  so,  a  grant  to  be  quit  of  assarts,  shall  be  only  for  those 
before  committed. (s) 

628.  If  a  man  commit  waste  within  a  forest  by  cutting  or  destroying  the 
vert  without  license,  the  wood  or  the  land  where  the  waste  is  done  shall  be 
seized  into  the  hands  of  the  queen,  till  the  owner  replevy  it  and  make  fine,(/) 
though  the  owner  has  an  estate  of  inheritance,(/)  and  though  he  die  before 
presentment  of  the  waste,  for  the  wood  or  other  land  shall  be  seized  until 
the  heir  replevy  it,(/)  and  if  the  heir  will  not  pay  the  fine  the  land  remains 
in  the  queen's  hands  forever.(/)  The  old  forest  law  is  in  most  other  re- 
spects now  grown  out  of  use,  and  what  remains  of  it  is  now  administered  by 
the  Commissioners  of  her  Majesty's  Woods  and  Forests,  aided  by  the  ver- 
derers  and  some  other  of  the  old  officers.  By  the  10  G.  4,  c.  50,  it  is  pro- 
vided, that  all  honours,  hundreds,  lordships,  manors,  forests,  chaces,  woods, 
parks,  messuages,  lands,  tithes,  fisheries,  franchises,  services,  rents,  and  other 
land  revenues,  possessions,  tenements,  and  hereditaments,  belonging  to  her 
Majesty,  (except  advowsons  and  vicarages.)  shall  be  under  the  management 
of  her  Majesty's  Commissioners  of  Woods  and  Forests ;  so,  by  the  Game 
Act,  1  &  2  W.  4,  c.  32,  provision  is  made  for  the  punishment  of  persons 
trespassing  in  any  of  her  Majesty's  forests,  parks,  chases,  or  warrens.  See 
further.  Dig.  p.  i.  tit.  Land  Revenue  of  the  Crown;  p.  iii.  tit.  Game;  as  to 
common  in  a  forest,  see  ante,  §  305  et  seq. 

629.  A  chace  is  a  liberty  to  keep  certain  wild  animal  within  a  certain 
district,  and  an  exclusive  right  of  hunting  them  therein.  A  chace  is  dis- 
tinguished  from  a  forest   by  not  being  subject  to   the    forest   laws,  and 

(?)  Id.  136. 

(m^  Tiie  case  of  Leicester  Forest,  Cro.  .Tac.  155  ;  S.  C,  12  Co.  22. 

(n)  Manw.  82,  135  ;  dub.,  W.  Jo.  290.  275  ;  and  contra,  W.  Jo.  2<J0. 

(o)  Sav.  5.  (/>)  Manw.  149. 

iq)  Manw.  155  ;  4  Inst.  306,  307.  (r)  Manw.  157. 

(s)  W.  Jo.  271.  2S9.  (0  Manw.  151.  158. 


340  crabb's  law   of   real  property. 

although  a  place  be  inclosed  and  proclaimed  as  a  forest,  yet  it  shall  be  a 
r*4ft«l  *^^^^^  ti'^  ^^^  proper  officers  and  courts  are  granted  ;(i<)  but  no  one 
L  -^  can  make  a  chace  within  his  own  land  or  elsewhere,  without  the 
queen's  grant  ;(a:')  the  like  may  be  said  of  an  ancient  park;  and  as  to  the 
distinction  between  a  chace  and  a  park,  see  further,  Dig.  iii.  tit.  Game. 

Free  warren  is  also  a  privilege  to  have  beasts  of  a  warren  in  one's  land, 
and  the  exclusive  right  of  killing  and  hunting  them  therein. (y)  This  privi- 
lege is  distinct  from  the  land,  and  by  a  lease  of  the  land,  without  more,  the 
warren  will  not  pass;(z)  so,  not  by  an  alienation  of  the  land  without  saying 
CKm  pertinentiis  ;{z\  but  it  has  been  usual  in  such  cases  for  the  alienor  to 
reserve  the  privilege  to  himself,(rt)  hence  it  has  come  to  pass,  that  a  man 
may  have  a  free  warren  in  another  man's  land  ;(6)  so,  it  is  said,  "that  a 
man  may  have  a  free  chace  as  belonging  to  his  manor  in  his  own  wood,  as 
well  as  a  warren  or  park  in  his  own  grounds  ;  for  the  chace,  warren,  or 
park  are  collateral  inheritances,  and  not  issuing  out  of  the  soil,  as  the 
common  doth,  and  therefore  if  a  man  hath  a  chace  in  other  men's  grounds, 
and  after  purchase  the  grounds,  the  chace  remaineth  ;"(c)  so,  a  free 
warren  may  be  claimed  within  a  cliace  of  the  queen,(rf)  and  the  grantee 
may  there  build  a  lodge  upon  his  own  inheritance  ;(e)  so,  it  may  be  claimed 
in  a  royal  forest, (/)  but  it  must  have  been  allowed  in  the  Eyre  before  the 
abolition  of  that  court, (^)  see  Dig.  p.  i.  tit.  Land  Revenue  of  the  Crown  ; 
and  it  may  be  claimed  by  grant  or  prescription  ;(/t)  but  if  prescribed  for  it 
must  be  in  the  ancient  place, (t)  and  a  prescription  is  not  lost  by  non-user  ;)i) 
but  a  man  cannot  prescribe  for  a  warren  in  the  lands  of  a  stranger  which 
are  not  within  his  seigniory ;{] )  so,  none  can  make  a  warren  in  his 
^  -]  *own  land  without  a  license  from  the  Crown,  because  he  cannot 
L  appropriate  to  himselfyer«s  ncUuras,  which  are  nuUiiis  in  bonis ;{k) 

and  if  the  queen  grants  to  B.  a  warren  within  his  manor,  he  shall  have  it 
only  in  the  demesnes,  not  in  the  lands  of  the  freeholders. (/) 

A  free  fishery,  like  a  free  warren,  is  a  privilege  under  a  grant  from  the 
Crown,  to  have  the  exclusive  right  of  taking  and  killing  of  fish  in  an  arm 
of  the  sea,  or  a  navigable  river,  Carter  v.  Murcot  ;(?n)  but,  in  this  case  it  was 
held,  that  if  any  one  would  claim  such  privilege,  he  ought  to  shew  a  right, 
the  presumption  being  against  him.(n) 


II.  2ro  be  a  Count »  ^Dalatfue, 

§  630.  The  highest  franchise  was  to  be  a  county  palatine,  which  was  so 
called  because  the  count  palatine  had  Jura  regalia  within  his  county  as  the 

(m)  Manw.  60.  (x)  Id.  56;  2  Inst.  199.  (t/)  2  Roll.  Abr.  812. 

(?)  Dy.  30,  in  ninr:r.  («)  2  Roll.  Abr.  812. 

(//)  2  Comni.  39,  citing  Bro.  Abr.  tit.  Warren,  3.  (c)  4  Inst.  318. 

ill)  Id.  498.  (f)  Id.  298.  ( /■)  Manw.  81  ;  Cro.  Jac.  155. 

("■;  Harrison's  case,  W.  Jo.  280.  (A)  2  Roll.  Abr.  812. 

(«•)  Cro.  Jac.  155.  (j  )  2  Roll.  Abr.  265. 

(A)  2  Inst.  199.  (/)  Burrough  v.  Taylor,  Cro.  El.  463. 

(m)  4  Burr.  2164.  (n)  lb.     Sec  also  the  River  Banu's  case,"  Dav.  55. 


FRANCHISES. 


341 


king-  himself,(o)  and  the  county  Avas  made  palatine  «  palalio  regis,  not  the 
person  a  count  palatine  ;  and  the  authority  of  him  who  had  a  county  pala- 
tine was  as  full  as  that  of  the  king  himself,  within  his  county ,(;?)  and  con- 
sisted of  a  royal  seigniory  and  a  royal  jurisdiction. (5-)  There  were  formerly 
four  such  counties  palatine,  namel}^  Lancaster,  Chester,  Durham,  and  Ely, 
but  the  separate  jurisdiction  in  all  of  them  is  either  abolished  altogether,  or 
made  to  be  subordinate  to  that  of  the  courts  at  Westminster.  See  Dig-.  P.  i. 
tit.  Lancaster,  Chester,  Durham,  and  Ely. 


*III.  STo  Ja'oe  a  ptanor. 


[*490] 


§  631,  iVranorial  Rio-hts. 
Court-baron. 
Suitors  to  the  Court. 

632.  Jurisdiction  of  a  Court-baron. 

633.  Wliere  and  when  the  Court  is  to  be 

kept. 
Metliod  of  holding  Courts. 


§  633.  Charge  to  the  Inquest. 

634.  Attachment. 
Execution. 

635.  Customary  Court. 

636.  Other   Franchises   annexed   to 

Manors. 


§  63L  A  manor,  as  before  shewn,  (see  ante,  §  88),  is  a  certain  circuit  or 
district  originally  assigned  to  great  men,  to  which  certain  manorial  rights  or 
privileges  were  annexed.  One  of  the  most  important  rights  belonging  to 
this  franchise  is  that  of  holding  courts,  namely,  a  court-baron  and  a  cus- 
tomary court. 

To  every  manor  a  court-baron  is  incident,(?-)  and  therefore  in  a  quo  icar- 
ranto  for  holding  a  court-baron,  it  is  sufficient  to  plead  that  he  has  a 
manor ;(«)  and  if  he  pleads  that  he  has  a  manor,  he  ought  not  to  prescribe 
for  holding  a  court-baron  ;(^)  so,  if  he  grants  a  manor,  the  court-baron  passes 
as  incident,  although  there  is  an  exception  of  all  courts,  unless  in  the  case 
of  the  queen ;(?/)  but  the  profits  of  courts  may  be  excepted;(a7)  and  being 
incident  to  a  manor  of  common  right,  it  is  not  lost,  merely  because  no  court 
has  time  out  of  mind  been  holden  within  the  manor.(y) 

Freehold  tenants  alone  are  suitors  to  the  court-baron,  and  of  these  there 
must  be  two  at  least  ;(z)  and  in  Glover  v.  Lane,(o)  it  is  said,  "  To  constitute 
a  manor,  it  is  necessary  *not  only  that  there  should  be  two  free-  ^^  .„.  , 
holders  within  the  manor,  but  also  two  freeholders  holding  of  the  L  -' 
manor  subject  to  escheats. "(6) 

(0)  4  Inst.  204 ;  Dav.  60.  (p)  4  Inst.  205.  (7)  Dav.  63, 

(r)  8  H.  7;  1  Kitch.  7,  8 ;  1  Inst.  58 ;  2  Inst.  99  ;  4  Inst.  268. 

(s)  R.  V.  Stanton,  Cro.  Jac.  260.  See  also  1  Bulstr.  51;  R.  v,  Staverton,  Yelv.  190 ; 
Noy,  20 ;  Moor,  870  ;  1  Bl.  580. 

{t)  Noy,  20.  («)  Brown  v.  Goldsmith,  8  J.  B,  Moore,  870. 

{x)  Sir  Robert  Acton's  case,  Dy.288. 

{y)  Ow.  35.  See  also  R.  v.  Havering-atte-Bower,  5  B.  &  A.  691 ;»  R.  v.  Hastings 
(Mayor,  &,c.,)  Id.  692,  n. 

(z)  Bro.  tit.  Court-baron,  pi.  23  ;  Kitch.  7,  S ;  R.  v.  Staverton,  sup.;  Tonikin  v.  Crocker, 
2  Ld.  Raym.  864 ;  1  Walk.  Cop.  9  ;  2  Scriv.  Cop.  720,  (a)  3  T.  R.  447. 

{b)  Per  Lord  Kcnyon,  Glover  v.  Lane,  3  T.  R.  447.  See  also  Chetwode  v.  Crew, 
WiUes,  614. 

»Eng.  Com.  Law  Reps.  vii.  234. 


342  crabb's   law  of  real   property. 

The  suitors  are  the  judges  of  the  court,  not  the  steward, (c)  unless  there 
be  a  custom  or  prescription  that  pleas  should  be  holden  before  the  steward, 
which  it  seems  there  maybe;(f/)  although  in  some  earlier  cases  this  was 
denied. (e)  The  steward,  is  however,  a  constituent  part  of  the  court,  and 
not  merely  a  ministerial  officer,  as  was  formerly  supposed. (y) 

632.  Courts  baron  were  ordained  for  three  purposes,  namely,  to  adjust 
differences  between  lord  and  lord,  between  lord  and  tenant,  and  between 
tenant  and  tenant  ;(g')  and  it  is  said  also  as  against  strangers  coming  with- 
in the  manor. (/*) 

A  court-baron  may  hold  plea  of  actions  personal  when  the  debt  or  damage 
is  under  40s. ;(?')  so,  in  trespass  without  vi  et  annls,  under  40s.  ;(^•)  but  by 
charter  or  prescription,  it  may  hold  pleas  above  40s. (/) 

But  account  does  not  lie  in  a  court-baron  ;(m)  so,  not  regularly  trespass 
^  -,  vi  et  armis  :()i^  so,  not  detinue  of  *writings  ;(o^  sed  secus  as  to  de- 
L       '^-^  tinue  of  goods  ;(p)  so  not  replevin. (p) 

A  court-baron,  it  seems,  may  also  hold  pleas  of  land,  to  the  exclusion  of 
all  other  jurisdictions,  except  by  a  remisit  curiam  from  the  \oxA;{q)  and  this 
was  by  a  writ  of  right  patent  before  its  abolition  by  the  3  &  4  W.  4,  c.  27. 
Such  a  plea  may  be  removed  by  writ  of  toll  into  the  county  court,  and  from 
thence  into  the  Court  of  Common  Pleas. (r) 

A  court  by  prescription  may  also  have  jurisdiction,  as  a  peculiar,  to  grant 
probate  and  administration,  and  also  to  take  cognizance  of  testamentary 
causes,  (s) 

If  an  action  be  sued  in  a  court-baron,  in  which  it  has  no  jurisdiction,  pro- 
hibition lies  \{t)  so,  if  the  defendant  pleads  that  the  cause  did  not  arise 
within  the  jurisdiction  ;(/)  so,  if  it  has  no  jurisdiction,  the  proceeding  there 
is  void,  and  trespass  lies.(f) 

633.  A  court-baron  may  be  held  at  any  place  within  the  manor,  otherwise 
it  will  be  void  ;(?<)  but  by  custom  the  lord  may  hold  a  court  within  one 
manor  for  several  manors  ;(i')  so,  a  surrender  maybe  made  out  of  court 

{c')  39  H.  r>.  .5,  cited  Bro.  tit.  Judg-mcnt,  pi.  118  ;  Kitch.  145.  See  also  Jentleman's  case, 
6  Co.  11  b  ;  Lord  Cohliain  and  Browne's  case,  1  Leon.  217  ;  Lovell  and  Galston's  case, 
Godb.  68  ;   Eurc  v.  Wells,  T.  Jo.  23 ;  R.  v.  Morgan,  1  Bl.  398. 

(rf)  1  Leon.  316,  pi.  444;  Tonkin  or  Tomkin  v.  Crocker,  2  Ld.  Raym.  860;  S.  C,  2 
Salk.  604 ;  S.  C,  2  Liitw.  12J 1 ;  R.  v.  Morgan,  1  Bl.  398.  See  also  Rast.  Ent.  5.';3 ;  Co. 
Ent.  118;  Winch's  Ent.  1014;  James  v.  Tutney,  Cro.  Car.  497;  Eure  v.  Wells,  T. 
Jo.  23. 

(e)  Pell  V.  Towers,  2  Cro.  El.  791;  S.  C.  nom.  Pell  v.  Towers,  Noy,  20;  Armyn  v. 
Appletoft,  C"ro.  Jac.  582.     See  also  2  D'Anvcrs,  295,  tit.  Court-baron ;  1  Ncls.  Abr.  50. 

(  0  Howard  v.  Wood,  1  Freem.  473  ;  S  C,  T.  Jo.  126  ;  S.  C,  2  Lev.  245.  See  contra, 
Calth.  54 ;  Holroyd  v.  Breare,  2  B.  &,  A.  473.     And  see  further  2  Scriv.  Cop.  722,  3rd  cd. 

{g)  Scrog.  Pract.,  pp.  82  et  seq.  (A)  Br.  Court-baron,  pi.  1;  Kitch.  146. 

(i)  Kitch.  74 ;  Pell  v.  Towers,  sup.  {k)  Kitch.  146. 

(0  Id.  187.  See  also  R.  v.  Havering-atte-Bower  (Steward,  &c.),  5  B.  <fe  A.  69  ;'■  and 
R.  V.  Hastings  (Mayor,  &c.),  Id.  692.  (wi)  Kitch.  146,  citing  43  E.  19. 

(n)  Kitch.  146  et'seq.;   1  Inst.  118;  2  Inst.  311. 

(o)  F.  N.  B.  47.         (p)  Kitch,  146.         (7)  Id.  147.         (r)  Booth's  Real  Actions,  86,  n. 

(s)  Denham  v.  Stephenson,  1  Salk.  41  ;  Atkins  v.  Hill,  Cowp.  286. 

(0  Kitch.  147;  F.  N.  B.  4,  E. 

(m)  1  Inst.  58  ;  Kitch.  186;  Co.  Cop.,  s.  31 ;  Scrog.  Pract.  83. 

(»)  lb.  See  also  Seagood  v.  Hone,  Cro.  Car.  367  ;  S.  C,  W.  Jo.  342  ;  Co.  Cop.,  s.  31  : 
Clifton  v.  Molyneux,  4  Co.  27. 

''Eng.  Com.  Law  Reps.  vii.  234. 


FRANCHISES.  343 

without  alleging  a  special  custom  for  it  •,{x)  so,  a  steward  may  take  surren- 
ders out  of  a  manor  without  a  custom.(2/) 

The  court-baron  was  formerly  held  once  in  every  three  weeks,(z)  but  it 
is  now  usually  held  once  a  year,  and  the  lord,  in  the  absence  of  any  custom, 
cannot  compel  a  more  frequent  attendance  of  the  suitors ;(«)  and  it  is  said 
that  it  miglit  be  held  even  at  night.(6)  But  special  courts  may  *also  ^4,^03-1 
be  called  for  the  purpose  of  effecting  the  transfer  of  copyhold  pro-  L 
perty. 

The  usual  method  of  holding  a  court-baron  is,  that  the  steward  makes  a 
precept  to  give  reasonable  warning  of  the  court. (c)  Warning  for  fifteen 
days  is  best,  which  is  the  common  time  between  the  teste  and  return  of  a 
writ  in  the  Common  Pleas,(c)  but  six  or  seven  days'  warning  is  sufficient. (c) 

After  the  inquest  and  the  proclamation,  the  steward  gives  the  charge  to 
the  inquest. ((/)  The  charge  admonishes  them  to  present  suitors  who  make 
default  ;(e)  so,  to  present  the  death  of  every  tenant,  and  who  is  heir,  and 
what  profit  accrues  to  the  lord  by  his  death  ;(/)  forfeiture  of  any  tenant  by 
alienation,  &c.  ;(/)  so,  subtraction  of  services  ;(/)  so,  incroachment  or  tres- 
pass in  his  demesne,  or  waste ;(/)  so,  inclosure  or  surcharge,  &c.  of 
common, (/) 

All  pleas  in  a  court-baron  of  common  right  and  of  a  personal  nature  were 
by  wager  of  law,  before  the  3  &  4  W.  4,  c.  2,  s.  13,  abolishing  that  pro- 
ceeding, and  it  was  only  by  prescription  that  it  could  be  determined  by  the 

634.  The  process  on  plaint  in  a  court-baron  is  summons  and  distress  infi- 
nite ;(A)  but  the  court  has  no  power  to  make  execution  as  in  the  superior 
courts  ;(i)  and  the  distress  in  a  court-baron,  even  of  goods  taken  upon  a 
judgment,  is  only  in  the  nature  of  a  pledge,  and  cannot  be  sold  except  by 
special  custom  •,{k)  yet,  by  special  custom,  a  levari  facias  may  be  awarded 
in  a  court-baron,  and  the  goods  may  be  sold,  but  in  such  case  the  custom 
must  be  pleaded. (/) 

*A  court-baron  not  being  a  court  of  record,  neither  the  lord  nor  p^^g^-i 
steward  can  fine  or  imprison, (m)  nor  can  the  lord  or  steward  assess  L 
an  amercement  for  a  private  trespass  done  to  the  lord,  except  by  custom  ;(n) 
yet  by  prescription,  the  steward,  even  of  a  court-baron,  may   assess  an 
amercement, (o)  see  further  as  to  amercements,  post,  §  653. 

635.  So,  a  manor  has  a  customary  court,  as  well  as  a  court-baron,(/))  and 
this  concerns  the  copyhold  tenants  only,(/;)  audit  may  be  held  without  free- 
holders, although  it  is  otherwise  with  a  court-baron,  (see  ante,  §  631,)  and 

(x)  1  Inst.  59. 

(y)  Dudfield  v.  Andrews,  1  Salk.  184.     See  also  Tuckelev  v.  Hawkins,  1  Ld.  Raym.  7G. 
(2)  Co.  Cop.,  s.  31.  (a)  Scroggs,  40.  83.  (b)  Moor,  6S,  pi.  185. 

(c)  Kitrh.  6  a.  ('/)  Id.  7.  {e)  Id.  53.  (/)  Id.  55. 

(<r)  Tyndal  v.  Toller,  Bendl.  140  ;  S.  C,  1  Leon.  204  ;  S.  C,  cited  Moor,  277. 
(A)  38  E.  3,  3,  cited  Bro.  Court-baron,  pi.  5,  10;  Tubervill  v.  Tipper,  2  Roll.  Rep.  493. 
(i)  4  H.  6,  17,  cited  Bro.  Court-baron,  pi.  6,  7. 

(k)  Bro.  Court-baron,  pi.  6,  7  ;  Id.  Execution,  pi.  110.     But  see  Scroggs,  Pract.  93. 
(/)  Frye  v.  Burgh,  Noy,  17  ;  Pell  v.  Towers,  Id.  20;  Hewctt  v.  Norbcron,  Bulstr.  52. 
See  also  Scroggs,  203.  (in)  Co.  Cop.,  s.  26 ;  Tr.  34.  (n)  Kitch.  154. 

(o)  Blunt  V.  Whitacre,  1  Leon.  242.  ip)  1  Inst.  58. 


344 


CRABB  S  LAW  OF  REAL  rROFERTT. 


although  there  should  be  no  freeholder  ia  the  manor  by  which  the  court- 
baron  could  be  held,  and  even  the  manor  itself  is,  in  riome  respects,  lost,  yet 
there  still  may  be  a  customar}'  court  ;f5)  so,  therefore,  where  a  manor  is 
granted  by  copy,  it  may  have  a  customary  court,  but  it  shall  not  have  a 
court-baron  ;(r)  but  there  cannot  be  a  customary  court  without  copyhold- 
ers,(s)  for  this  customary  court  is  for  those  only  by  copy  of  court-roll,  and 
the  lord  or  steward  is  the  judge  in  distinction  from  a  court-baron  at  common 
law,  where  the  suitors  are  the  judges,(/)  see  ante,  i§  631,632;  so,  the 
copyholders  attending  to  their  fealty  at  this  coun  are  called  "the  homage," 
who  are  sworn  to  make  their  presentments  in  the  same  manner  as  the  jury 
at  a  leet,  see  post  5  643  ;  and  if  a  manor  has  a  court  of  a  double  nature,  that 
is,  customary  and  court-baron,  the  proceedings  of  both  may  be  entered  on 
the  same  roU.(u) 

636.  There  are  several  other  franchises  usually  annexed  to  manors,  all  of 
which  are  not  exclusively  manorial  rights,  as  to  hold  a  courl-leet,  to  have 
-,  wreck,  treasure  trove,  estrays,  *waifs,  and  bona  fvgitivorum,  deo- 
L  -^  dands,  markets  and  fairs,  and  tolls,  each  of  which  will  be  considered 
in  its  order ;  besides  which  there  are  other  manorial  rights,  the  fruits  of 
tenure,  which,  belonging:  properh'  to  that  branch  of  the  subject,  will  be  treat- 
ed of  under  the  head  of  Copyuolds,  see  post,  under  that  title. 


IV.  Zq  l)ate-  a  €ourt-lrrt  or  ll?un'iJvc'&. 


§  637.  What  is  a  Coort-leet, 

Appendant  to  a  ^lanor. 
Style  of  the  Court 

638.  Appendant  to  a  Hundred- 

to  a  VilL 

but  not  to  a  Church. 

639.  How  to  be  claimed. 

To  be  held  at  what  time. 

640.  Wliere  to  be  held. 
Notice  ofholding-. 

641.  Doing  Suit  to  the  LeeL 
Suit  Real  and  Suit  Service. 

642.  Esemptioos. 
Clergy. 

Tenants  in  Ancient  Demesne. 

643.  Jurisdiction  of  the  Court-leet. 
Common  Nuisances. 

644.  Not  private  Wrongs. 

645.  Inquiring  of  tlie  Profits  of  the  Lord- 
&16.  Presentment,  how  made. 


§  616. 
647. 


648. 

649. 
650. 
651. 
65-2. 
653. 
654. 


655. 


Requisites  of  the  Presentment 

OtSccrs  in  the  Leet. 

Steward. 

Bailiff. 

Reeve. 

Aleconner, 

Constable. 

Refusal  to  accent  OflSce. 

Exemptions  from  serving  Office. 

Barristers  and  Attorneys  exempt. 

Fines. 

Amercements. 

How  affeerod. 

Remedies  for  Fines. 

Action. 

Distress. 

Remedies  for  Amercements. 

Distress. 

Action  of  Debt. 


§  637.  The  leet  is  a  court  of  record  derived  out  of  the  sherifTs  town  :(x) 
and  to  every  court-leet  is  annexed  the  view  of  frank-pledge,  or  an  examina- 


{q)  Melwitch's  case,  4  Co.  26  b. 

(r)  R.  V.  Staverton,  Yelv.  lltO.     See  also  Cro.  Jac.  260.  (»)  1  Inst  58. 

(«)  Kitch.  163 ;  Co.  Cop.,  s.  45 ;  Tr.  102 ;  Melwitch  and  Later,  4  Co.  26  b. 
(ii)  lb. ;  1  lost  bd.  (x,  2  List  71  ;  4  Inst  261. 


rRAKCHISES.  345 

tion  of  the  persons  resi(fent  within  a  leet,  who  were  anciently  called  "  frank- 
pledsres,'"  that  is,  sureties  to  answer  an}-  complaint.  A  court-leet  may  be 
appendant  to  a  manor,  though  not  necessarily  incident  *to  it  like  a  p^^gf.-. 
court-baron  ;(y)  and  the  style  of  Ihe  court  is,  "  The  Court-leet  with  L  J 
view  of  Frank-pledge  of  E.  C,  dec,  held,"  &c. ;  and  if  appendant  to  a 
manor,  and  held  with  the  court-baron,  it  may  be  thus — "The  Court-leet, 
with  view  of  Frank-pledge  and  Court  of  E.  C,  &c."(?) 

If  a  leet  is  appendant  to  a  manor,  and  the  queen  purchases  two  parts  of 
the  manor,  the  leet  remains  appendant  to  the  other  part: (a)  and  so,  if  the 
lord  enfeoffs  another  of  his  manor,  without  mentioning  the  appurtenances, 
he  retains  the  leet  ;(6)  but  a  man  shall  not  have  a  leet  in  his  manor  within 
the  leet  of  another  seigniorj'-  ;(c)  yet  there  may  be  a  superior  leet,  at  which 
the  resiants  of  the  inferior  leet  are  to  attend,  see  infra,  §  646. 

638.  A  leet  it  seems  is  not  strictly  incident  to  a  hundred,  because  one 
liberty  cannot  be  incident  to  another,  but  it  may  be  appendant  to  a  hun- 
dred.(<f) 

A  leet  may  also  be  appendant  to  a  vill  or  an  ancient  messuage, (f)  for  it 
may  be  presumed  that  the  house  is  the  site  of  a  manor ;(/)  but  it  cannot  be 
prescribed  for  as  appendant  to  a  church  or  chapel  -Js:)  and  if  a  leet  belongs 
to  a  hundred,  by  a  grant  of  lands  in  a  vill,  parcel  of  the  hundred,  with  all 
leets  prsemissis  spectan  et  pertinenV,  the  grantee  shall  not  have  a  leet 
within  such  vill.(^) 

639.  A  leet  may  be  claimed  by  charter  or  the  queen's  grant,  for  the  queen 
may  grant  to  a  man  to  have  power  *tenere  placita  within  a  certain  p^ <q~- 
precinct,  &c.,  and  before  certain  judges,  and  in  a  manner  to  exempt  L  -' 
it  from  the  jurisdiction  of  her  superior  courts  :(/)  so,  a  leet  may  be  claimed 
by  prescription  which  presupposes  such  grant. (^) 

'  The  leet  shall  be  held  at  the  time  assigned  by  the  charter,(^  but  he  that 
claims  it  by  prescription,  may  claim  to  hold  it  once  or  twice  every  year,  or 
upon  any  such  davs  as,  upon  reasonable  warning,  shall  be  appointed  ;(m) 
so,  it  may  be  prescribed  to  be  held  semel  m  anno,  upon  which  the  lord 
may  hold  it  when  he  pleases  ;(n)  so,  if  the  queen  grant  it  to  be  held  semel 
in  anno  without  ascertaining  the  time;(o)  but  if  the  charter  or  prescription 
does  not  direct  otherwise,  b_y  the  equity  of  the  statute  Magna  Charta,  c. 
35,  it  shall  be  held  within  a  month  after  Easter,  and  a  month  after  Michael- 

(y)  Colebrooke  v.  EUiot,  3  Burr.  1859.  (z)  Co.  Cop.  819,  3d  ed. 

(a)  Bendl.  pi.  45. 

{b)  Dr.  30,  pi.  209  ;  1  And.  26.  See  also  1 8  H.  6,  11 ;  33  H.  6,  4,  cited  Bro.  Incident5, 
pi.  2,  20";  Lord  Cobham  and  Browne's  case,  1  Leon.  218.  {c)  1  Roll.  541. 

(rf)  Bro.  Leet,  pi  24  ;  Id.,  Incidents,  pL  18.  See  also  Lord  Norris  v.  Barrett,  Moor,  426 ; 
Lawson  v.  Hare,  2  Leon.  74 ;  2  Inst.  122,  and  contra.  Kitchen,  p.  78,  who  says  that  a  leet 
is  of  ncccssitr  incident  to  a  hundred,  and  cites  8  H.  7,  1.     Also  March,  75. 

(0  13  H.  6",  11.  C  f)  Gittins  v.  Cooper,  2  BrownL  217. 

(fi-)  10  E.  3,  5  :  IS  H.  6,  11 :  F.  X.  B.  Leet,  S ;  Bro.  Incidents,  29  ;  Tyrringham's  case, 
4  Co.  37 ;  Bowles  and  Mvison.  2  Brownl.  200. 

(A)  Lord  Norris  v.  Barrett,  Moor,  427.  (i)  2  last  71,  73. 

[k]  lb.     See  also  Finch's  Law,  246. 

(l)  2  Inst.  72;  Dakin's  case,  2  Saund.  291.  (m;   2  Inst.  72. 

(n)  Lawson  and  Hare's  case,  2  Leon.  74. 

(o)  Id.  75,  per  two  judges. 


346  CR abb's  law  of   real  property, 

mas ;( /?)  and  if  the  leet  does  not  appear  to  have  been  held  at  the  lawful  time, 
an  indictment  or  presentment  there  will  be  void.((j') 

640.  The  leet  of  the  tourn  is,  by  the  statute  Magna  Charta,  c.  35,  to  be 
held  in  a  place  certain  ;  but  it  should  seem  that  courts  leet  of  hundreds  or 
manors  may  be  held  in  any  place  within  the  seigniory  where  the  lord 
pleases  ;(r)  but  there  is  a  canon  prohibiting  the  keeping  of  temporal  courts 
leet  or  lay  juries  in  the  church,  chapel,  or  churchyard. (s) 

Fifteen  days'  notice  of  a  court-leet  is  usually  given,  but  in  the  absence  of 
established  usage  three  or  four  days'  notice  would  be  sufRcient,(^)  and  if  it 
be  not  an  ancient  leet,  it  appears  that  personal  notice  is  necessary. (m) 

*641.  All  resiants  within  the  leet  of  the  age  of  twelve  years  (ex- 
L  -^  cept  ecclesiastical  persons,  women,  and  barons  of  the  realm)  ought 
to  do  suit  in  the  leet  within  which  they  are  conversant,  in  person,(a;)  and 
after  the  age  of  twelve  years,  shall  be  sworn  there  to  the  queen  ;{y)  but  suit 
to  the  leet  court  is  due  by  reason  of  resiancy,  and  has  no  reference  to  ten- 
ure,(z)  therefore,  no  man  can  be  obliged  to  do  suit  to  the  court-leet,  within 
the  precincts  whereof  he  does  not  reside,  in  respect  of  any  lands  which  he 
may  have  within  the  jurisdiction  of  it  ;(a)  and  in  R.  v.  Adlard,(6)  it  is  said, 
"This  passage  (quoting  from  Lord  Coke,  2  Inst.  122)  is  a  plain  authority 
that  the  word  '  inhabitant,'  when  the  view  of  frank-pledge  is  spoken  of,  can- 
not mean  an  occupier,  and  it  seems  settled  that  a  man  cannot  be  of  two 
leets  ;(c)  for  if  a  man  hath  a  house  within  different  leets  he  shall  be  taken 
to  be  conversant  where  his  bed  is  ;((Z)  hence  the  distinction  between  suit 
real  and  suit  service,  for  the  former  is  in  respect  of  his  resiance  to  a  leet  or 
town,  and  the  latter  by  reason  of  a  tenure  of  his  land  of  the  county,  hun- 
dred, wapentake,  or  manor,  whereunto  a  court-baron  is  incident. (rZ)  Such 
suit  real  cannot  be  done  by  attorney,  (e) 

642.  As  to  the  exemptions  of  the  clergy  from  doing  suit  real,  it  is  to  be 
understood  that  the  exemption  is  personal ;  therefore  the  proprietor  of  lands, 
which  were  parcel  of  a  dissolved  inonastery,  held  in  frank-almoigne,  and  dis- 
charged of  secular  services,  was  held  not  to  be  exempt  from  attending  the 
court-leet. (/) 

Tenants  in  ancient  demesne  are  also  exempt  from  atte n dance, (o-)  but 
r*iqQ~l  ^'^cient  demesne  is  no  exemption  from  serving  *the  office  of  con- 
L        -1  stable. (/i)     Attorneys,  as  it  seems,  cannot  be  amerced  for  not  doing 

(p)  Dakin's  case,  sup.  (?)  Staundf.  P.  C.  84  b. 

(r)  Br.  Court-baron,  8 ;  citing  8  H.  7.  3.     See  also  Kitch.  88  ;  Ow.  35. 

(s)  2  Burn's  E.  L.  47  e,  Pliill.  ed. 

it)  Greene,  County  Courts,  p.  283.  Sec  also  Br.  Action  on  the  Case,  75  ;  Kitch.  88 ;  2 
Inst.  72  ;  Jenk.  Pac.  Cons.  2,  3  ;  Scroggs,  13  ;  Rits.  on  Courts  Leet,  41  ;  2  Scriv.  Cop. 
822.  (w)  Brook  v.  Hustler,  11  Mod.  76. 

(x)  2  Inst.  99,  121.  (y)  1  Inst.  68,  b. 

(z)  Kitch.  82 ;  citing  45  E.  3,  23  ;  2  Inst.  99. 

(a)  2  Hawk.  P.  C,  b.  2,  c.  10,  s.  12.  (ft)  4  B.  &  C.  780. 

(c)  Kitch.  G5,  66 ;  F.  N.  B.  159.  -  {d)  2  Inst.  122. 

(e)  Kitch.  145  ;  F.  N.  B.  25.     See  also  Tott  v.  Ingram,  1  Brownl.  186. 

(  f)  Dacre  v.  Ni.Yon,  2  Roll.  Rep.  56. 

(g)  Br.  Aunc.  Dem.,  pi.  49,  citing  Reg.,  fo.  181.     See  also  F.  N,  B.  14,  E.,  marg. 

(/»)  R.  V.  Bettsworth,  1  Vent.  344 ;  S.  C,  2  Show.  75. 


FRANCHISES.  347 

suit  at  the  leet,  when  their  attendance  in  the  queen's  courts  at  Westminster 
is  required.(/) 

If  the  suitor  does  not  appear  at  the  leet,  he  shall  be  amerced  and  not  dis- 
trained,(A:j  because  for  suit  real  no  distress  can  be  taken  ;(/j  so,  the  queen 
cannot  grant  to  another  that  he  shall  not  do  suit.(?/i) 

643.  By  the  common  law  the  leet  might  inquire  of  all  felonies  ;(??)  now, 
by  Stat.  Westm.  2,  c.  13,  no  felony  is  determinable  there  ;(n)  so,  a  common 
nuisance  may  be  inquired  of  at  the  leet;(o)  as  if  a  ditch  be  made  across  the 
highway, (o)  as  to  turning  or  stopping  waters, (/;)  making  hedges  or  ditches 
to  the  disturbance  of  the  people  ;(</)  so,  if  a  person  who  has  no  warren, 
stores  his  land  with  conies,  it  is  a  common  nuisance  inquirable  at  the  leet(r) 
so,  none  may  now  erect  a  dovecot  but  the  lord  of  a  manor,  and  if  any  do  it, 
he  may  be  punished  in  the  leet,  but  no  action  on  the  case  lies  by  any  parti- 
cular man.(s) 

644.  But  a  presentment  of  the  inclosure  of  a  common  is  void,  for  this  is 
a  wrong,  not  a  common  nuisance  ;(/)  so,  a  private  n\iisance  is  not  inquirable 
in  the  leet,  as  if  one  surcharge  a  common, (w)  or  stop  a  watering-place  for  the 
inhabitants  of  B.,(a:)  or  stop  up  a  man's  lights, (^)  or  suffer  his  own  gate  to 
be  open  to  the  annoyance  of  others. (z)  So,  a  thing  of  necessity  is  a  nuisance 
inquirable  in  the  leet,  as  for  a  man  to  unload  billets  in  a  street  or  highway, 
for  ^necessity,  &c.  requires  it ;(«)  or  to  erect  a  scaffolding  for  the  p^rnn-i 
repair  of  a  building.(6)  L         J 

645.  But  the  leet  may  inquire  of  things  which  belong  to  the  lord,  as  trea- 
sure trove  ;(c)  so,  wreck,  by  the  15  R.  2,  c.  3;(rf)  so,  Avaifs,  for  the  lord  of 
the  leet  has  power  to  try  waif  by  inquest,  but  the  lord  of  the  hundred  not, 
for  he  has  no  power  to  try  by  jury  ;(e)  so,  estrays  ;(/)  so,  of  outlaws  and 
of  their  goods  ■,(g)  so,  whether  land  be  aliened  in  mortmain  without 
license ;(/?)  so,  of  customs  and  services,  and  by  whom  withheld. (i)  As  the 
jurisdiction  of  the  leet  was  confined  to  pleas  of  debt  under  40*.,  all  pleas  of 
land  were  necessarily  excluded  from  its  consideration. 

646.  No  indictment  or  presentment  shall  be  but  by  twelve,  at  least,  by 
Stat.  Westm.  2,  c.  13;(A:)  and  when  there  are  not  twelve  persons  present, 
the  steward  may  compel  a  stranger  to  be  sworn  ;(/)  and  a  presentment  in  a 
leet  by  twelve,  of  a  matter  within  their  jurisdiction,  is  not  traversable, (m) 
but  a  presentment  not  within  their  jurisdiction,  as  where  life  or  freehold  is 

(t)  Stone's  case,  1  Vent.  16.  29.  (t)  2  Inst.  118. 

(/)  F.  N.  B.  159,  D.,  n.  (a).  (m)  Dacrc  v.  Nixon,  2  Roll.  Rop.  56. 

(n)  2  Inst.  32.  (o)  1  Inst.  56  ;  1  Roll.  541.  (  p)  Kitch.  41.  44. 

iq)  9  H.  6.  44  ;  10  H.  6,  7  ;  Bro.  Leete,  2,26. 

(r)  Boulston  v.  Hardy,  Moor,  453.  (s)  Bonlston's  case,  5  Co.  104. 

it)  Bro.  Leete,  30,  citing  27  Ass.  6.  (w)  1  Roll.  Abr.  541. 

(x)  1  Inst.  56.  (y)  9  Co.  58.  (2)  Moor,  356. 

Co)  2  Roll.  Abr.  32,  137.  (h)  Id.  145.  (c)  Stat.  18  Ed.  2. 

id)  Kitch.  24.  (0  Bro.  Leet,  5,  citing  44  E.  3.  19  ;  Kitch.  45  ;  Jenk.  P.  C.  27. 

(/)  Kitch.  22.  (e)  Id.  23  ;  Jenk.  P.  C.  27. 

(A)  Kitch.  23.  (i)  Id.  10. 

'k)  Id.  80,  citintr  45  E.  3.  26  ;  Bro.  Lcctc,  7  ;  2  Inst.  387  ;  Cutler  v.  Crcswick,  3  Keb. 
362.  (/)  7  H.  6.  12 ;  12  IL  7. 15  ;  Kitch.  13,  citin<r  2  II.  7.4;  4  Bro.  Leet,  14,  24. 

(»n)  Kitch.  84,  citing  41  E.  3.  27  ;  2  R.  3.  12  ;  Scrogjjs,  84. 


348  crabb's   law  of   real   property. 

concerned,  is  bad  ;(n)  but  it  is  settled  that  all  presentments  in  leet  may  be 
removed  by  certiorari  into  the  Court  of  Q,ueen's  Bench,  and  there  travers- 
ed,(o)  and  a  presentment  by  a  less  number  than  twelve  is  traversable,(^)) 
so,  if  an  inferior  leet  neglect  to  present  a  matter  that  is  there  presentable,  it 
may  be  presented  at  the  superior  leet, ((7)  but  it  must  be  specially  pleaded, 
r*'ini1  ^"^  ^  general  prescription  *is  not  sufficient  ;(r)  so,  there  may  be  a 
L  -^  superior  leet  belonging  to  a  manor,  which  shall  inquire  of  all  matters 
which  the  inferior  leet  has  neglected  to  present  ;(s)  and  at  this  leet  the  reeve 
and  four  resiants  ought  to  attend,  but  they  cannot  compel  the  attendance  of 
an  inhabitant  who  belonged  to  the  particular  leet,  because  a  man  cannot  be 
of  two  leets.(s)  The  jurisdiction  of  a  leet  jury,  like  that  of  a  grand  jury,  is 
confined  to  things  done  or  neglected  since  the  last  court  ;  they,  cannot, 
therefore,  present  things  done  subsequently  to  their  being  sworn, (/)  and  a 
custom  for  the  jurors  to  be  charged  and  sworn  at  one  court  to  inquire  and 
present,  and  to  return  their  presentment  at  the  next  court,  has  been  held 
bad  ;(i<)  but  it  is  said  that  in  some  manors  the  jury  continue  in  office  for  a 
whole  year.(u) 

Every  presentment  in  a  leet  must  be  certain,  and  state  the  precise  day 
of  holding  the  court, (a:)  and  before  whom  held  ;(?/)  but  it  does  not  appear 
necessary  to  state  quo  jure,  as  whether  by  grant  or  prescription ;(z)  so,  in 
replevin,  it  is  sufficient  to  allege  seisin  of  the  hundred. («) 

647.  The  officers  in  a  leet  are  the  steward,  the  bailiff,  the  reeve,  the 
aleconner,  and  the  constable. 

The  steward  is  the  judge  of  the  court; (6)  but  it  has  been  said  that  in  a 
private  leet  the  lord  may  sit  as  judge,  and  exclude  the  steward  ;(t')  and  the 
steward  is  a  judge  of  record, (<^/)  and  he  may  be  retained  by  deed  or  parol  ;(c) 
so,  he  may  make  a  precept  to  the  bailiff  to  distrain  by  parol. (/) 
r*^n2"l  *The  duty  of  the  bailiff  is  to  impannel  the  jury,(^)  but  it  seems 
L  -'  that  by  custom  the  steward  may  nominate  the  persons  to  be  sum- 
moned as  jurors  ;(/*)  where  a  bailiff  is  a  prescriptive  officer,  having  power 
to  summon  and  select  a  jury,  his  function,  as  appendant  to  a  court-leet,  has 
been  held  sufficient  ground  for  an  information  in  the  nature  of  a  quo  ivar- 
ranto.{i\ 

A  reeve  shall  be  sworn  to  do  his  office  in  the  leet,(^-)  and  his  oath  con- 
tains a  declaration  that  he  will  execute  all  attachments  and  process  to  him 

(n)  Dy.  13,  pi.  64  ;  Keb.  66  ;  Kitch.  84.  (o)  R.  v.  Roupcll,  Cowp.  458. 

(/>)  Kitch.  89,  citing  45  E.  .3.  2G;  6  H.  4.  1. 

{q)  Loader  v.  Samwcll,  Cro.  Jac.  551.  (r)  Loader  v.  Sarawell,  Cro.  Jac.  551. 

(s)  Cock  V.  Stubbs,  Cro.  Jac.  583.  (0  Moore  v.  Wickers.  Andr.  47. 

(m)  Davidson  v.  Moscrop,  2  East,  56. 

(r)  Rits.  on  Courts  Leet,  9  ;  also,  Vaugban  v.  Atwood,  1  Mod.  202  ;  Palmer  v.  Barfoot, 
1  Lulw.  440;  Wicker  v.  Norris,  cited  in  Bedford  (Duke)  v.  Alcock,  1  Wils.  248. 
(x)  Dakin's  case,  2  Saund.  290  ;  S.  C.  nom.  Dacon's  case,  1  Vent.  107. 
(//)  3  Keb.  251.  (2)  R.  v.  Gilbert,  1  Salk.  200 ;  S.  C,  12  Mod.  4. 

(a)  Lawson  v.  Hare,  2  Leon.  74. 

(6)  Jentleman's  case,  6  Co.  12;  4  Inst.  261.     Sec  also  Witliers  v.Isenam,  Dy.  70, 
(c)  R.  V.  Jennings,  11  Mod.  215.  (</)  Griesley's  case,  8  Co.  41. 

(e)  Dy.  248;  1  Inst.  61,  b.  (/)  Kitch.  82. 

is)  R.  V.  Harrison,  8  Mod.  135.  {h)  R.  v.  Joliffe,  2  B.  &,  C.  54.» 

(0  R.  V.  Bingham,  2  E_ast,  308.  Qc)  Kitch.  92. 

•Eng.  Com.  Law  Reps.  ix.  21. 


FRANCHISES.  349 

directed  by  the  lord  or  liis  steward,  and  present  all  pound-breaches,  waifs, 
estrays,  &c.(/) 

An  aleconner  was  to  be  sworn  to  see  that  bread  was  Aveiefhed  accordinop 
to  the  size,  and  that  ale  was  wholesome,  &c.(?»^ 

648.  A  constable  is  an  officer  chosen  for  the  maintenance  of  the  queen's 
-peace.     Both  high  and  petty  constables  were  recognized  by  common   law, 

the  former  being  officers  of  hundreds  and  the  latter  of  tithings.(n)  The 
high  constable  is  regularly  chosen  by  the  justices  at  sessions,  but  by  pre- 
scription he,  as  well  as  the  petty  constable,  may  be  chosen  by  the  leet,(o) 
and  the  right  of  election  is  in  the  jury  ;(;;)  but  a  corporation  cannot  elect  a 
constable  except  by  special  custom  ;((/)  but  in  default  of  election  by  the  jury, 
the  justices  may  appoint  a  constable, (r)  yet  only  until  the  lord  holds  a 
court  ;(s)  and  the  sessions  cannot  discharge  a  constable  appointed  by  the 
leet,  except  under  the  provisions  of  the  13  &  14  C.  2,  c.  12.(/) 

*A  refusal  to  accept  the  office  of  constable  is  an  indictable  ro^j-^o-i 
offence  ;(?<)  so,  he  may  be  fined  by  the  steward,  if  present,  or  L  -• 
amerced,  if  absent. (t;) 

649.  A  person  is  not  liable  to  serve  the  office  of  constable  unless  he  be 
resiant  in  the  parish,  occupying  a  house  paying  rates  and  taxes ;  carrjang 
on  business  there  is  not  sufficient  if  he  do  not  sleep  there  ;(.r)  but  though  a 
man  is  not  bound  to  attend  two  leets,  yet  when  a  leet  is  held  for  a  manor 
within  a  hundred,  the  tenant  of  the  manor  leet  is  not  excused  from  serving 
the  office  of  constable  for  the  hundred,  but  a  custom  for  the  exemption  might 
be  good.(3/) 

650.  A  barrister,  and  a  practising  attorney,  is,  by  reason  of  his  attending 
the  courts  at  Westminster,  exempt  from  serving  the  office  of  constable,  but 
this  privilege  does  not  extend  to  a  physician  ;(^)  so,  not  to  a  person  because 
he  is  Master  of  Arts ;(«)  so,  a  certificate  under  10  &  11  W.  3,  discharging 
persons  from  serving  parish  offices,  is  no  exemption  from  being  sworn 
constable  at  a  court-leet  ;(^)  whether  a  gentleman  of  quality  may  be  exempt, 
is  not  settled. (c)  In  Prouse's  case,((Z)  it  was  held,  that  a  woman  could  not 
be  a  constable,  but  in  Vane's  case,(e)  a  custom  in  a  vill,  where  there  are 

(Z)  lb. ;  1  Inst.  234,  b.  (m)  Kitch.  92. 

(n)  Crompt.  6,  b. ;  Lamb.  Off.  Const.  16  ;  R.  v.  Wyatt,  1  Salk.  175  ;  S.  C,  2  Ld.  Raym. 
1193;  R.  V.  Kinff,3  Keb.  231. 

(0)  4  Inst.  265 ;  R.  v.  Bernard,  2  Salk.  502  ;  S.  C,  Comb.  416 ;  S.  C,  Skinn.  669  ;  R. 
V.  Hewson,  12  Mod.  180  ;  R.  v.  Goudg-e,  2  Str.  1213. 

ip)  Fletcher  v.  Ingram,  1  Salk.  175 ;  S.  C,  1  Ld.  Raym.  70 ;  S.  C,  5  Mod.  127 ;  R.  v. 
Stevens,  T.  Jo.  212.  (q)  R.  v.  Bernard,  sup. 

(r)  Abbot  V.  Moore,  1  Mod.  13.  (s)  R.  v.  Davis,  2  Str.  1050. 

{«)  Lord  Wentvvortli's  ease,  Bulst.  174  ;  Limin<Tton  Constables'  case,  2  Str.  798. 

(!/)  Prigg's  case,  Al.  78 ;  R.  v.  Line,  2  Stra.  920. 

(i')  Gricsley's  case,  8  Co.  38 ;  S.  C,  Siv.  93,  (x)  R.  v.  Adlard,  4  B.  &  C.  778.^ 

(y)  R.  V.  Genge,  Cowp.  13,  recognizing  R.  v.  King,  3  Keb.  197.  230  ;  S.  C,  1  Frecm. 
348;  also,  R.  v.  Jennings,  11  Mod.  215. 

(z)  Pooradge's  case,  1  Mod.  22  ;  S.  C,  1  Sid.  431 ;  2  Kcl).  578. 

(a)  Herson's  case,  5  Vin.  429.  {(>)  R.  v.  Darby  shire,  2  Burr.  1182. 

(c)  Poordage's  case,  sup. ;  R.  v.  Wright,  1  Keb.  439. 

(d)  Cro.  Car.  389.  (c)  1  Sid.  355, 

''Eng.  Com.  Law  Reps,  x,  458. 
December,  1846. — 23 


350  CR abb's  law   of  real  property. 

several  houses,  that  every  one  shall  be  "constable  in  turn,  vvas  held  good  ; 
"  For  though  it  shall  happen  to  be  the  turn  of  a  widow,  she  may  have  one 
to  serve,  and  then  he  who  serves  is  sworn,  and  he  is  a  constable  and  not  a 
deputy;"  see  also  R.  v.  Stubbs.(/) 

^_„  .-,  A  person  appointed  constable  cannot  appoint  a  deputy  *without 
L         -^  the  sanction  or  consent  of  some  other  authority. (^) 

651.  A  fine  may  be  imposed  by  the  steward  upon  any  officer  of  the 
leet  for  neglect  of  his  duty,  as  if  a  bailiff'  refuse  to  make  return  of  the 
panel, (A)  or  a  juror  to  be  sw^orn  ;(z)  so,  for  a  contempt  in  view  of  the  court, 
as  putting  on  his  hat  in  court, (A-)  or  saying  to  the  steward  "You  lie  ;"(/] 
sed  secus  as  to  words  not  importing  contempt  ;(m)  but  the  fine  must  be 
reasonable  ;(n)  and  therefore,  if  a  fine  in  a  court-leet  be  unreasonable,  it  may 
be  avoided  by  plea  and  judgment  of  the  court,  for  the  judges  are  to  deter- 
mine the  reasonableness  of  a  fine.(«) 

But  for  a  thing  not  in  his  view,  the  steward  cannot  fine,  as  for  not  doing 
suit,(o)  or  where  a  constable  is  not  present  at  the  time  of  his  election. (jo) 

652.  For  an  offence  in  the  leet,  not  done  in  the  presence  of  the  steward 
or  in  contempt  of  the  court,  a  man  may  be  amerced,  for  an  amercement  is 
properly  the  act  of  the  jury,  and  a  fine  the  act  of  the  court, (5-)  for  those  only 
who  have  conusance  of  a  thing  may  impose  a  fine  or  amercement  for  the 
same  thing  ;  therefore,  where  an  offence  is  presented  by  a  jur}',  the  punish- 
ment is  by  amercement,  not  fine,  though  it  be  a  contempt  ;(r)  but  there  shall 
not  be  an  amercement  in  the  leet  for  a  trespass  done  to  the  lord  himself,  for 
_^_„_-,  he  shall  not  be  judge  in  his  own  cause  ;(s)  so,  not  *for  non-pay- 
L  -J  ment  of  rent  to  him,  for  which  he  may  distrain  ;(/)  so,  there  can  be 
no  amercement  in  a  leet  for  an  encroachment  on  the  rights  of  a  lord  of  a 
manor  ;(?<)  so,  not  for  an  inclosure  of  the  waste,  and  erecting  a  cottage 
thereon  ;(?/)  so,  not  for  any  particular  damage  to  the  lord.(w) 

653.  An  amercement  ought  to  be  imposed  with  mercj%  and  therefore  it  is 
called  misericordia,{v\  and  shall  be  proportioned  according  to  the  offence  to 
the  lord,  and  not  the  damage  to  the  tenant  ;(a.-)  so,  when  fixed  by  the  jury,  it 
must  be  aff^eered  and  moderated  by  others  ;(y)  and  the  jury  ought  to  assess 
it  at  a  sum  certain, (?/)  and  the  afl^eerment  ought  to  be  by  persons  chosen  by 

(/)  2  T.  R.  406. 

(g)  R.  V.  Adiard,  4  B.  &  C.  778.'     Sec  also  Vane's  case,  1  Sid.  355. 

(/O  8  Co.  38  ;  Roll.  Abr.  218.  (i)  Id.  219. 

(k)  Bathurst  v.  Cox,  T.  Raym.  68. 

(/)  Lincoln  (Earl)  v.  Fisher,  Cro.  El.  581  ;  S.C.,  Ow.  113  ;  S.  C,  Moor,  470. 

(?«)  Berrington  v.  Brooks,  T..T0.  229.  {n)  Griesley's  case,  8  Co.  38.      ' 

(0)  Hall  V.  I'urbeft,  Cro.  El.  241.     See  also  Lukin  v.  Eve,  Moor,  88,  89. 

(p)  Fletcher  v.  Ingranr,  1  Salk.  175  ;  S.  C,  5  Mod.  130  ;  S.  C,  1  Ld.  Raym.  70 ;  S.  C, 
Skinn.  635. 

iq)  Palm.  7.  See  also  7  H.  6.  12,  cited  Bro.  Leet,  12  ;  Id.,  Fine  pur  Contempts,  44  ; 
Id.,  Amercements  ;  Godfrey's  case,  11  Co.  43  ;  Griesley's  case,  8  Co.  41. 

(r)  Moore  v.  Wickers,  Andr.  47.  (s)  1  Roll.  Abr.  211,  citing  12  H.  4.  8.  b. 

{t)  Ibid.  (u)  R.  V.  Dickenson,  1  Saund.  135. 

(»)  1  Inst.  126.  (X)  F.  N.  B.  75,  E. 

lyj  Wilton  v.  Hardingham,  Hob.  129  ;  Evelin  v.  Davies,  3  Lev.  206. 

«Eng.  Com.  Law  Repp.  x.  458. 


FRANCHISES.  351 

the  steward  and  sworn  for  that  purpose  ;(z^  but  the  afTeerors  may  be,  and 
usually  are  chosen  from  the  jury,(«)  and  the  affeerment  must  be  made  at 
the  same  court  ;(i)  but  the  reasonableness  of  an  amercement,  once  affeered, 
cannot  be  questioned  in  a  writ  of  error. (c) 

654.  A  fine  imposed  by  the  steward  is  recoverable  in  an  action  of 
debt ;((/)  it  may  also  be  recovered  by  distress, (e)  even  without  a  custom,  a 
distress  being  incident  to  a  court-leet 'of  common  right,  Pierson  v.  Rid- 
ley,(/)  and  in  this  case  it  is  said,  that  though  of  common  right  a  distress 
may  be  taken  for  a  fine  in  a  court-leet,  that  is,  where  it  is  imposed  for  such 
things  as  are  of  common  right  incident  to  its  jurisdiction,  as  for  contempts 
or  the  like,  yet  when  custom  onlj^  enables  them  to  set  a  fine,  it  cannot  be 
distrained  for  without  *a  custom  also;  so  where  it  is  for  a  private  r^,-nfil 
advantage  of  the  lord,  it  cannot  be  distrained  for  without  a  prescrip-  L  -^ 
tion.(o-) 

655.  An  amercement  is  recoverable  either  by  distress  or  action.  If  an 
amercement  be  affeered,  the  lord  may  distrain  for  it  of  common  right,  with- 
out prescription, (/<)  and  the  distress  may  be  taken  in  any  place  within  the 
precinct  of  the  leet,(?)  even  in  the  common  street  ;(A-)  but  a  distress  cannot 
be  taken  for  an  amercement  in  a  place  out  of  the  jurisdiction,  and  therefore 
it  is  necessary  to  plead  the  bounds  of  the  leet  with  certainty  ;(A  so,  it  may 
not  be  upon  the  goods  of  astranger,(m)  though  they  be  upon  the  land  of  the 
offender  ;(?n)  so,  the  bailiff' cannot  distrain  ex  officio,  but  he  must  have  a 
special  warrant  from  the  steward  ;(n)  and  if  a  bailiff" justifies  in  trespass,  he 
ought  to  show  the  precept  ;(o)  but  in  replevin  this  is  not  necessar)^(o) 

So,  debt  lies  for  an  amercement  affi?ered,(/j)  and  debt  on  an  amercement 
may  be  joined  with  a  debt  on  a  mutuatur  ;(</)  so,  in  debt  for  an  amercement 
of  a  freeholder,  it  must  be  proved  to  have  been  affeered  by  freeholders,  other- 
wise the  action  will  not  lie;(r)  so,  if  the  names  of  the  affeerors  be  not  set 
forth  in  the  declaration,  it  shall  be  intended  that  it  has  been  done  by  the 
steward.(s) 

{z)  Evelin  v.  Davies,  sup. 

(a)  Kitch.  153  ;  Gill,  Eq.  Rep.         (J>)  Scrog-g.  1.50 ;  Cutler  v.  Creswick,  3  Keb.  363. 

(c)  Stubbs  V.  Flower,  1  Bulst.  125  ;  Cronipton  on  Courts,  225. 

(rf)  Griesley's  case,  8  Co.  38. 

{e)  Swan  v.  Mora^an,  Lex  Man.  80.     App.  Keilw.  66  b. 

(/)  2  Keb.  701,  739,  745;  S.  C.  nom.  Pierson  v.  Ridge,  204;  S.  C,  1  Vent.  105. 

(5")  Godfrey's  case   11  Co.  45  a.  (/t)  Prat  v.  Stearn,  Cro.  Jac.  382. 

(i)  Bro.  Leet,  28,  citing  2  H.  4. 24;  Kitch.  86,  citing  8  R.  2,  Avowry,  194. 

(k)  Kitch.  86,  citing  19  E.  2,  Avowry,  221. 

(I)  Wilton  V.  Hardingham,  Hob.  129  ;  George  v.  Lawley,  Skinn.393. 

(m)  Pell  V.  Towers,  Noy,  20. 

(tj)  Steverton  v.  Scrugs,  Cro.  El.  698,  perPopham;  scd  contra,  per  Gawdy.  But  sec 
Matthews  V.  Carey,  Carth.  73  ;  S.  C,  3  Salk.  52  ;  S.  C,  3  Mod.  138  ;  and  Lamb  v.  Mills, 
4  Mod.  378  ;  Skinn.  587  ;  also  Robson  on  Courts  Leet,  121.     (o)  Matthews  v.  Carey,  sup. 

(p)  Prat  v.  Stearn,  Cro.  Jac.  382.  (9)  Bedlbrd  (Duke)  v.  Alcock,  1  Wils  .248. 

(0  Baldwin  V.  Tudge,  2  Wils.  20. 

(s)  Griesley's  case,  8  Co.  40  b ;  Cutler  v.  Creswick,  3  Keb.  362. 


352 


CRABBS  LAW  OF  REAL  PROPERTY. 


L*507] 


*V.  gTo  Ijnbc  Wvcct. 


656.  What  is  Wreck. 

657.  Flotsam,  Jetsam,  Lagan. 

658.  Prerog-alive  as  to  Wreck. 
Restitution  to  tlie  Owner. 

659.  Wreck  as  a  Franchise, 

660.  Claimed  by  a  Sul)jcct. 

661 .  Right  commonly  annexed  to  Manors. 


§661. 


662, 
663. 


May  be  prescribed  for, 

]\Iay  be  claimed  by  t'ustom. 

But  a  consideration  must  be  shown 

to  support  a  Custom, 
Goods  derelict. 
Possession  of  Wreck. 
Recovery  of  Wreck. 


§  656.  Wreck  is  where  goods,  after  shipwreck,  are  thrown  upon  the  land, 
and  no  man,  dog,  or  other  animal  escapes  alive  out  of  the  ship  ;(^t\  but  if 
any  animal  escapes  aliv^e,  it  will  not  be  a  wreck,  for  a  dog  and  cat  are 
put  but  for  examples,(M)  and  the  statute  Weslm.  1,  c.  4,  (3  Ed.  1.)  is  deem- 
ed to  be  only  a  declaration  of  the  common  law.(r)(n 

So,  if  a  ship  be  in  distress,  all  desert  her,  and  any  one  come  alive  to  land, 
though  the  ship  afterwards  perishes,  there  will  be  no  wreck  ;(?/)  so,  if  a 
ship,  being  in  a  tempest,  cut  its  cable,  the  anchor  is  not  wreck  ;(z)  so,  where 
a  ship  at  sea  was  pursued  by  enemies,  and  the  men  for  the  safeguard  of 
their  lives  left  the  ship,  and  the  enemy  took  the  ship  and  spoiled  her  of  her 
goods  and  tackle  and  turned  her  into  sea,  and  she  was  driven  ashore  by 
the  weather,  where  the  men  arrived,  it  was  resolved  by  all  the  judges  of 
England  that  the  ship  was  no  wreck  nor  lost.(a)  In  order,  therefore,  to  con- 
stitute wreck,  not  only  must  there  be  no  life  saved,  or  vestage  remaining  by 
which  the  property  may  be  identified,  but  the  goods  must  be  cast  or  left  on 
the  land  by  the  sea, (6)  and  this  is  the  legal  signification  of  the  word 
'*wreck"(c)  and  the  jurisdiction  over  such  property  belongs,  therefore,  not 
^  -,  *to  the  admiral,  but  to  the  common  law  ;(cZ)  therefore,  if  the  ship 
L  -^  perish,  and  any  of  the  servants  escape,  held,  that  the  goods  are  not 
wreck,  (e) 

657.  To  wreck  also  belongs  what  has  been  technically  caWedyiotsam,  Jet- 
scan,  and  lagan. 

Flotsam  is  where  goods  after  shipwreck  be  floating  or  swimming  upon  the 
lop  of  the  water. (/) 

Jetsam  is  anything  cast  out  of  the  ship  being  in  danger  of  a  wreck,  and 
beaten  to  the  shore  by  the  waves,  or  cast  on  it  by  the  mariners. (y*) 

Lagan  is  where  the  goods  are  cast  into  the  sea,  and  the  ship  afterwards 
perishes,  and  the  goods  are  so  ponderous  that  ihey  sink  to  the  bottom,  but  the 
mariners,  with  intent  to  get  them,  fasten  to  them  a  buoy  or  cork,  or  other 
such  thing  as  will  not  sink,  so  that  by  such  things  they  may  find  them 
again, (A  And  none  of  those  goods  which  Vixe  cSi\h(\  flotsam,  j  etsam, ox  lagan 
are  called  wreck  so  long  as  they  remain  in  or  upon  the  sea ;  but  if  any  of 
them  are  driven  to  the  land  by  the  sea,  then  they  shall  be  said  to  be  wreck ; 


it)  2  Inst.  166. 
Az)  2Roll.  Abr.  159. 


(«)  Id.  167.  (.r)  Vaugh.  164.  (y)  2  Inst.  167. 

('/)  2  Inst.  167,  citing  Fishlake's  case,  5  R.  2. 


(6)  Bract.  1.  3,fol.  120  ;  11  H.  4.  IG;  Vaugh.  16*^,  (c)  2  Inst.  167, 

{d)  F.  N.  B.  112,  C;   2  Inst.  167.  (0  5  Ed.  3.  3, 

(/)  Constable's  case,  5  Co.,  106;  Blount,  nom.  verb.  Flotsam. 


(1)  3  Kent's  Com,  322. 


FRANCHISES.  353 

SO  that  JJotsam,  jetsam,  and  Uigan  pass  by  the  grant  of  wreck  ;(/)  but 
this  is  only  when  the  ship  perishes,  or  the  owner  of  the  goods  is  not  known, 
for  goods  cast  into  the  sea  for  fear  of  tempest  are  not  forfeited, (g-)  and  so 
long  as  goods  Jiotsam,  &c.,  are  upon  the  sea,  they  do  not  pass  to  the  queen, 
but  to  the  first  finder. (A) 

658.  By  the  common  law  all  wrecks  belong  to  the  queen, (//)  for  by  her 
prerogative  she  has  dominion  over  the  sea,  and  is  entitled  to  all  derelict 
goods  of  merchants  ;  and  she  has  a  right  of  way  over  any  man's  ground  for 
her  wreck. (i) 

By  the  statute  3  Ed.  1,  c.  4,  if  any  goods  be  saved,  they  *must  c-^^qq-i 
be  kept  by  view  of  the  sheriff,  coroner,  &c.,  and  bailed  in  the  hands  L  J 
of  those  of  the  town  where  found  ;  and  if  any  person  proves  property  with- 
in a  year  and  a  day,  they  shall  be  restored  to  him  without  delay,  if  not,  they 
remain  to  the  queen. (^)  If  the  goods  are  not  kept  by  the  sheriff,  but  taken 
away  by  the  neighbours,  the  owner  shall  have  a  commission  of  oyer  and  ter- 
miner, to  inquire  of  the  trespass  and  make  restitution, (/)  The  year  and  day, 
within  which  the  owner  may  prove  his  property,  shall  be  computed  from 
the  seizure  as  wreck  ;(/)  and  if  the  owner  dies,  his  executor  or  administrator 
maj'-  prove  his  property  ;(/)  so,  if  the  goods  are  bona  peritura,  the  sheriff 
may  for  necessity  (which  is  excepted  out  of  law)  sell  them  within  the 
year.(/) 

But  wreck  of  the  queen's  goods  will  not  alter  the  property  in  them,(7n) 
and  she  is  not  confined  to  her  proof  within  a  year  and  a  day  like  a  sub- 
ject, (^i) 

659.  Wreck  may,  however,  belong  to  a  subject  by  grant  or  prescription, 
or  even  by  mere  usage,  for  it  seems  that  in  some  cases  usage  will  give  a 
subject  a  right  against  the  prerogative, (o)  and  so  in  the  case  of  wreck,(7;)  for 
it  is  said  that  in  ancient  times  wreck  of  the  sea  and  other  casualties  belonged 
to  the  first  finder,  although  afterwards  the  right  was  transferred  to  the  king 
as  the  head  of  the  republic. (9) 

In  cases  of  express  grant,  it  is  said,  that  rights  or  privileges  within  a 
certain  precinct  shall  not  be  extended,  although  the  precinct  itself  is  after- 
wards extended,  and  therefore,  where  wreck  of  the  sea  was  granted  to  a 
man  in  all  his  lalids,  this  grant  should  not  extend  to  the  land  whereof  he 
was  then  disseised,  and  into  which  he  afterwards  re-entered,  because  at  the 
time  of  the  grant  he  had  only  a  right  in  the  land,  and  the  grant  at  the  time 
of  the  making  of  it  could  *not  extend  to  the  land  which  was  then  p*KjQ-| 
not  his  own,  but  another's,  viz.  the  disseisor's  ;(r)  so,  it  has  been  L  J 
held,  that  if  any  liberty  was  resumed  by  Act  of  Parliament  which  a  corpo- 
ration had,  and  the  lands  came  to  the  king  who  granted  over  the  land  with 
tot  talia,  &c.,  as  the  corporation  had,  the  resumed  liberty  would  not  pass, 
unless  there  were  special  words  of  grant  de  novo;(^s^  sed  secus  where  the 

(/)  Constable's  case,  5  Co.  106  ;  Blount,  nom.  verb.  Flotsam. 

la)  46  Ed.  3.  15.         {h)  Constable's  case,  5  Co.  108.         li)  Vaugh.  164  ;  6  Mod.  149. 

(fr)  Vaugh.  164.  (/)2Inst.  16S. 

(w)  Plowd.  243.  (n)  2  Rro.  Wreakc  de  Me.irc,  citing  3.5  H.  6,  27  ;  2  Inst.  168. 

(0)  Case  of  Mines,  Plowd.  322.  (p)  Hiilc,  De  Jure  Maris,  i).  41. 

(7)  2  Inst.  163,  citing  Bractou,  1.  3,  fo.  120.  (r)  Plowd.  130. 

(«)  W.  Jo,  349. 


354  crabb'slaw   of    real   property. 

liberty  was  appendant  to  a  manor  originally  in  the  hands  of  an  abbot  ;(s) 
and  a  grant  of  Duchy  lands  is  subject  to  the  same  incidents  as  a  grant  of 
lands  belonging  to  the  Crown. (A 

660.  It  seems  that  the  Lord  High  Admiral  may  have  wreck  by  prescrip- 
tion, "  for  the  Lord  High  Admiral's  office(z<)  is  an  ancient  office  :"  but  it 
cannot  be  claimed  as  appurtenant  to  his  office  ;  therefore,  when  a  manor,  to 
which  wreck  belonged  by  prescription,  came  to  the  king's  hands,  who 
granted  to  A.  "the  office  of  Admiral,  with  all  wrecks  at  sea  and  all  profits 
to  the  said  office  belonging,"  and  after  this  granted  the  manor  to  B.,  under 
Avhom  the  plaintiff  claimed,  it  was  held  that  those  words  did  not  pass  the 
wreck  belonging  to  the  manor  by  prescription. (a:-) 

66L  This  franchise  is  most  usually  annexed  to  manors,  and  may  also  be 
parcel  of  or  belong  to  a  hundred  ;(?/)  and  a  right  to  wreck  of  the  sea  infra 
iuanerium  is  a  strong  presumption  that  the  shores  are  parcel  of  the 
manor  ',{z)  so,  one  may  prescribe  to  have  Avreck  between  high  and  low 
Avater  mark,  and  it  is  said,  that  those  of  the  west  country  prescribe  to  have 
wreck  in  the  sea  so  far  as  they  may  see  an  Humber  barrel  ;(o)  so,  one  may 
prescribe  to  have  Jlofsam  and^e^sam.  City  of  Bristol  and  Lord  Berkeley, (6) 
and  in  this  case,  where  the  Lord  Berkeley  had  a  manor  adjoining  to  the 
-,  Severn,  *where  he  prescribed  to  have  wreck,  and  certain  goods 
L  J  floated  between  high  and  low  water  mark,  and  the  City  of  Bristol 
had  Jlotsum  there,  it  was  held,  that  the  said  goods  were  not  wreck  so  long 
as  they  floated  in  that  manner. (c) 

Although  usage,  as  before  observed,  (see  ante,  §  659,)  may  give  a  subject 
a  right  to  wreck,  yet,  in  that  case,  the  custom  must  be  founded  upon  some 
consideration,  or  it  will  be  void  ;  therefore,  where  the  plea  in  trover  was 
the  custom  that,  if  a  ship  perished,  the  lord  should  have  the  best  anchor 
and  cable,  it  was  held  bad,  for  that  the  custom  was  without  consideration 
and  void  ;(rf)  but,  in  a  similar  action  for  taking  an  anchor  and  cable  by  virtue 
of  a  similar  custom,  where  the  defendant  (the  lord  of  the  manor  of  Burling) 
shewed  that  the  lord  of  that  manor  had  been  used,  when  any  Avreck 
happened  upon  the  manor  between  high  and  low  water  mark,  to  take  care 
of  the  sick  and  wounded,  and  to  bury  the  dead,  and  to  pjjeserve  the  goods 
cast  there,  for  the  use  of  the  proprietor,  and  in  consideration  thereof,  to  have 
the  ship's  best  anchor  and  cable,  this  was  held  to  be  a  good  consideration, 
and  the  custom  not  unreasonable. (e) 

662.  Goods  which  are  considered  wreck,  by  being  cast  upon  the  land, 
are  called  derelict,  that  is,  deserted  by  the  owners,  and  this  happens  upon 
many  occasions,  as,  where  they  come  from  infected  towns  and  places,  and 

(s)  W.  Jo.  349.  (0  Alcock  v.  Cooke,  5  Bing.  340,» 

(m)  Per  Holt,  C.  J.,  12  Mod.  2G0. 

(z)  Wiggan  V.  Branthwaitc,  12  Mod.  259  ;  S.  C,  Holt,  758;  S.  C.  1  Ld.  Raym.473. 

(;/)  Hale,  De  Jure  Maris,  42.  (t)  Id.  27. 

{a)  Constable's  case,  5  Co.  108.  {b)  Cited  in  Constable's  case,  sup. 

(cj  City  of  Bristol  and  Lord  Berkeley,  eited  in  Constable's  case,  5  Co.  106. 

(*/)  Gccre  v.  Burkensham,  3  Lev.  8:^ ;  S.  C,  2  Danv.  429,  pi.  9. 

(e)  Simpson  v.  Bithwood,  3  Lev.  307. 

»Eng.  Com.  Law  Reps.  xv.  462. 


FRANCHISES. 


355 


though  never  purposed  for  merchandize,  they  will  be  wreck  when  they 
come  on  shore  ;(/)  so,  boats  or  other  vessels  forsaken,  or  found  on  the  sea 
without  any  person  in  them,  are  also  said  to  be  derelict  ;(»•)  so,  again,  goods 
never  intended  for  merchandize,  which  are  thrown  overboard  to  lighten  a 
ship  in  a  storm,  are  wreck  if  cast  on  shore,  although  there  be  no  subsequent 
shipwreck  ;(/i)  but  goods,  as  it  seems,  (though  *intended  for  traffic,)  f-^.-ioT 
which  are  cast  overboard  to  lighten  the  ship,  are  not  considered  as  L  -^ 
derelict, (f)  aed  queer e ;  and  a  question  also  arose  at  that  time,  whether  dere- 
lict goods  were  liable  to  customs'  duty.(y)  This  point  was  first  raised  in 
Saunders's  case,(/)  and  it  seemed  to  be  then  considered,  that  as  the  king 
was  not  chargeable  with  customs,  so  his  grantee,  who  was  to  enjoy  the 
privilege  in  like  manner  with  himself,  ought  not  to  be  liable,  and  in  Shep- 
pard  V.  Gosnold,(A;)  it  was  decided  that  wrecked  goods  were  not  liable,  and 
this  decision  was  confirmed  in  a  subsequent  case,  Courtney  v.  Bower, (/) 
although  in  a  previous  case.  Power  v.  Porlman,(??i)  it  was  held,  that  goods 
wrecked  or  Jlofs am,  should  pay  customs,  and  now,  by  Act  of  Parliament, 
derelict  goods  are  made  liable ;  see  the  Customs'  Act,  3  &  4  W.  4,  c.  56, 


Dig.  P.  i.  tit.  Flotsam. 


663.  Possession  of  the  wreck  is  in  him  that  has  the  right,  and  Fitzherbert 
lays  it  down,  that  if  a  man  have  wreck  by  prescription  or  grant,  and  goods 
be  wrecked  on  his  land,  he  may  have  an  action  of  trespass  against  any  one 
for  taking  them  away.(?i) 

When  wreck  is  to  be  recovered,  the  jurisdiction  is  not  in  the  admiral,  but 
in  the  courts  of  common  law,(o)  but  the  Court  of  Admiralty  shall  have  cog- 
nizance oi  flotsam,  jetsam,  and  lagan,  because  the  latter  are  on  the  sea ; 
therefore,  in  a  case  between  the  Lord  High  Admiral  and  Sir  Henry  Con- 
stable, part  of  the  goods  claimed  and  taken  on  behalf  of  the  admiral  passed 
by  the  name  of  wreck,  and  part  being  flotsam  did  not  pass,  and  entire 
damages  were  assessed,  judgment  was  consequently  given  against  the  plain- 
tifl''.(;j)  As  to  the  plundering  of  wrecks,  see  Dig.  P.  i.  tit.  Larceny  ;  and  as 
to  salvage,  see  Dig.  P.  i.  tit.  Wreck. 


*VI.  STo  i)abc  STvcJtsurc  trolic  antr  25stv.ii>5. 


[*513] 


§  664.  What  is  Treasure  trove. 

665.  What  is  an  Estray. 
Wliat  is  not  Estray. 

666.  Who  shall  liave  the  Estray. 
Retaking  of  Estray. 

667.  Riglit  of  Lessee. 
Ritrht  of  Wife. 
Rig^ht  of  Infants. 

Right  of  Tenant  in  Common. 


§  667.  Rigiit  of  Executor. 

668.  Claimincr  Estray  by  Owner, 

669.  How  an  Estray  may  be  used. 

670.  Nature   of  the   Lord's   Right  in  an 

Estray. 

671.  Swan  an  Estray. 
Swan  Marks. 

Swans  claimed  by  Prescription. 


C/")  Sheppard  v.  Gosnold,  Vaugh.  168.  {g)  \  Rob.  Rep.  41. 

(A)  Sheppard  v.  Gosnold,  sup.  (i)  Sheppard  v.  Gosnold,  Vauo-h.  168. 

ij)  Moor.  224.  (A)  Vaugh.  1.5;».  (Z)  Ld.  Raym.  5U1. 

(m)  Molloy,  c.  8,  s.  9.       («)  F.  N.  B.  91,  D.  {„)  2  Inst.  168. 

(/))  Constable's  case,  5   Co.   106.     See  also   Bourne's  case,    Palm.  96;    Le  Seigneur 
(.Admiral)  v.  Linsted,  1  Sid.  178 ;  S.  C.  nom.  Duke  of  York  v.  Linstred,  1  Keb.  6J7. 


356  crabb's   law    of    real   property. 

§  664.  According  to  ancient  authors,  treasure  trove  originally  belonged 
to  the  finder,(5')  but  by  the  law  of  England  from  a  very  early  period  has 
belonged  to  the  king  as  his  prerogative,  or  to  some  lord  of  a  manor  or  liberty 
by  special  grant  or  prescription. (r)  Nothing  is  said  to  be  treasure  trove  but 
gold  and  silver,(.s)  but  it  may  be  either  bullion,  coin,  or  plate. (s)  It  is  im- 
material whether  it  be  found  hidden  in  the  ground,  or  in  the  ruins  of  any 
house  or  other  building,  or  elsewhere  ;(s)  but  treasure  found  in  the  sea  still 
belongs  to  the  finder. (<) 

Treasure  trove,  as  well  as  wreck,  shall  be  inquired  of  by  the  coroner, (t() 
and  the  concealment  of  it  is  punishable  by  fine  and  imprisonment. (f) 

665.  An  estray,  animal  vagans,  is  properly  any  beast,  not  being  wild, 
which  is  found  wandering  within  some  lordship  or  manor,(«')  but  the  terra 
is  applied  also  to  swans  or  cygnets, (,r)  (see  post,  §  671,)  although  not  to 
any  other  bird.(?/) 

n  *When  no  one  can  make  title  to  estrays,  the  law  gives  them  to 
L  J  the  queen,  or  to  lords  of  manors  claiming  under  a  grant  from  the 
Crown  ;(2;)  but  a  man  cannot  have  estrays  in  gross  by  prescription,  because 
they  lie  in  grant,  and  will  not  originally  pass  without  charter. (a)  If  no 
claim  be  made  within  a  year  and  a  day,  the  estray  belongs  to  the  lord,  but 
he  has  not  an  absolute  property  in  it  until  the  year  and  day  are  passed  ;(6) 
so,  it  will  not  be  an  estray  by  the  common  law,  although  it  continues  for  a 
year  and  a  day,  if  it  be  not  proclaimed  within  a  reasonable  time,(c)  and  pro- 
perly, at  the  next  market  day  of  the  nearest  market  town,(rf)  or,  according 
to  others,  in  the  two  nearest  market  towns,  &c.  ;(e)  and  the  year  and  day 
are  to  be  computed  from  the  seizure. (o-) 

So,  if  the  lord  or  his  bailiff  do  not  seize  it  as  an  estray,  it  shall  not  be  so, 
for  that  begins  the  property,(/j)  except  in  the  case  of  the  queen  ;(z)  so, 
cattle  which  come  for  common  cannot  be  estray  ;(A;)  so,  not  the  queen's 
cattle  which  come  into  the  manor  of  another.(/i) 

666.  If  cattle  stray  into  the  manor  of  A.,  and  within  the  year  stray  to  the 
manor  of  B.,  and  continue  there  for  a  year  and  a  day,  and  are  proclaimed, 
B.,  shall  have  them  as  estrays  ;(/f)  so,  if  the  first  manor  was  the  queen's 
manor  ;(A')  so,  if  a  stranger  Avithin  the  year  takes  the  cattle,  and  puts  them 
into  the  manor  again  as  his  own,  and  the}^  continue  there  hi  a  year  and  a 
^  -,  day,  they  will  be  an  estray, (^)  sed  secus  "^if  the  lord  put  them  into  a 
L         -^  place  out  of  the  manor  ;(??i)  and  it  is  said  that  the  lord  cannot  retak'e 

(q)  Glanv.  dc  Leg.,  c.  1 ;  Bract.,  1.  3,  fol.  120. 

(r)  Staundf.  P.  C.  39,  b. ;  1  Inst.  114,  b. ;  3  Inst.  1.32. 

(s)  3  Inst.  132.  (i)  Kitch.  78;  2  Inst.  168.  (u)  3  Inst.  133. 

(v)  Kitch.  49.  (w)  Filzh.  Abr.  Estray,  pi.  3. 

{x)  7  H.  6,  27,  28 ;  Fitzli.  Bar.,  pi.  6 ;  Bro.  Double  Pice,  41 ;  Kitch.  79. 

(y)  4  Inst.  280. 

(z)  Taylor  v.  James,  Godb,  150;  Engleftld's  case,  W.  Jo.  285;  Hazlcwood's  case, 
Ow.  14.  ('/)  Tattersall's  case,  W.  Jo.  283. 

(6)  Br.  Estray,  pi.  11,  citinof  33  H.  8 ;  Kitch.  79  ;  Finch's  Law,  45. 

(c)  Plcadal  v.  Gosmorc,  Winch,  68 ;  S.  C.  nom.  PIcydcll  v.  Gosmorc,  Hutt.  67. 

{d)  Henley  v.  Welsli,  Holt,  564 ;  S.  C,  2  Salk.  686. 

(p)  Br.  Estray,  pi.  10  ;  Kitch.  79 ;  Finch's  Law,  45;  Brownlow  v.  Lambert,  Cro.  El. 
716.  (?)  Henley  v.  Welsh,  sap. 

(/()  Hutt  67  ;  see  also  Palm.  486.  (0  Dy.  386,  pi.  40. 

ik)  1  Roll.  Abr.  878.  (/)  Id.  879.  ('«)  Palm.  486. 


FRANCHISES.  357 

it  if  it  strays  into  another's  land  before  the  year  expires,  for  no  property  is 
vested  in  him  until  after  the  year  and  a  day  ;(n)  but  it  has  been  otherwise 
decided, (o)  and  it  has  been  said,  that  he  may  retake  it  if  the  other  does  not 
seize  it  as  anestray.(;;) 

667.  So,  if  A.  leases  his  manor,  in  which  an  estray  was,  before  the  year 
expired,  the  lessee,  after  the  expiration  of  the  year  and  day,  shall  have  it, 
and  not  the  lessor,  for  he  had  the  custody  only  during  the  year,  and  the 
property  vests  in  him  who  has  the  custody  at  the  end  of  the  year  and 
day.(«/) 

If  an  estray  happen  within  the  manor  of  the  wife,  and  the  husband  die 
before  seizure,  the  wife  shall  have  it,  for  that  the  property  was  not  in  the 
wife  before  seizure. (r) 

So,  the  property  of  infants  and  others  under  disabilities  is  equally  bound, 
after  the  year  and  day,  as  well  in  the  case  of  estrays  as  of  wreck. (s) 

If  two  tenants  in  common  be  of  a  manor  to  which  estrays  belong,  no 
action  will  lie  by  the  one  against  the  other  who  should  alone  seize  the 
estray,  unless  by  prescription  the  one  is  to  have  the  first  estra}^  and  the 
other  the  second,  and  one  of  them  should  lake  the  beast  pertaining  to  the 
other. (t) 

If  the  lord  dies  before  the  year  expires,  and  afterwards  the  estray  con- 
tinues in  the  manor  for  a  year  and  a  day,  yet  the  executor  of  the  lord  shall 
have  it,  and  not  the  heir,  for  when  the  year  is  expired,  the  property  relates 
to  the  seizure, (m) 

668.  The  owner  of  an  estray  may  claim  it  at  any  time  after  the  year  and 
day  if  proclamation  be  not  made  ;(.t)  and  ^without  telling  any  r-^^^Qi 
marks,  or  making  any  proof  of  property,  (which  may  be  done  on  L  J 
the  trial,)  the  owner  may,  within  the  year,  seize  his  animal  where  he  finds 
him  on  tendering  satisfaction  ; (3/)  and,  in  pleading  tender,  he  need  not,  as 
in  the  case  of  a  trespass,  show  a  sum  certain,  because  he  is  not  a  Avrong- 
doer;(?/)  but,  if  the  owner  does  not  tender  reasonable  amends  for  his  pas- 
ture, the  lord  may  detain  it. (3/) 

669.  If  the  lord  uses  cattle  taken  as  an  estray,  by  riding  or  working 
them,  &c.,  he  will  be  a  trespasser  ab  iniiio  }[z^  so,  a  custom  alleged,  to  put 
cattle  taken  as  an  estray  into  a  moor,  part  of  the  manor,  and  there  fetter 
them  if  they  are  unruly,  is  not  good  ;(a)  but  using  an  estray  for  necessity  is 
justifiable,  as,  if  a  cow  be  taken  it  may  be  milked  ;(Z/)  so,  a  sheep  taken  as 
an  estray  may  be  sheared  ;(c)  so,  fetters  may  be  put  on  a  colt  which  cannot 
otherwise  be  prevented  from  breaking  fences  ;(<:/)  so,  an  estray  should  be 
kept  in   loco  aperto,  on  land  in  the   lord's  possession,  being  part  of  the 

(n)  Bro.  Estray,  11.  (0)  12  Co.  102. 

ip)  Pleydell  v.  Gosmore,  Hutf.  67.  (9)  12  Co.  102. 

(/•;  1  Inst.  351,  b.,  citing  43  Ed.  3,  8  ;  10  H.  6,  11. 
(s)  Constable's  case,  5  Co.  108.  (0  1  Inst.  200. 

Ill)  Moor,  11,  pi.  43.  (x)  Taylor  v.  James,  Godb.  150. 

(y)  Henley  v.  Welsh,  2  Silk.  685. 

(z)  Bagshawc  v.  Gowaid,  Cro.  Jac.  147  ;  S.  C.  riom.  Bagshaw  v.  Gawin,  Noy,  119  ;  S. 
C,  Yelv.  96. 

(a)  1  Roll.  Abr.  879  ;  Pleydell  v.  Gosmore,  Tliitt.  67  ;  S.  C,  Winch,  08. 

{b)  Bagshawe  v.  Goward,  sup.  (c)  Id.,  Noy,  119,  citing  Pridcux's  case. 

(</)  Pleydell  V.  Gosmore,  sup. 


358  crabb's  law  of   real  property. 

demesnes  of  the  manor  ;(e)  and  the  baihfT  of  the  lord  cannot  depute  his 
authority  by  dehvering  the  estray  to  the  care  of  another. (e) 

670.  It  is  said  in  one  case,  that  the  lord  could  not  maintain  trespass  for 
an  estray,  until  the  day  and  year  were  passed,(y)  but  he  may  have  a  special 
action  on  the  case  for  such  taking  •,[f\  and  if  a  stranger  take  an  estray  out 
of  a  manor,  the  lord  may  have  an  action  of  trespass  ;(^)  but  he  cannot  pre- 
scribe, that  if  any  stranger  chase  an  estray  out  of  the  manor,  he  shall  be 
r*Pil7~l  ^'^^'^^^'^  ^0^  ^^^  same  in  the  court  of  *the  manor,  such  a  prescription 
I-  -^  is  void  against  a  stranger  ;(/<)  yet  it  is  said,  that  trover  lies  against  a 
stranger  for  an  estray  without  actual  seizure, (?')  for  he  has  more  than  a 
simple  possession,  he  has  a  possession  that  will  turn  into  property  ;(A:)  (see 
also  on  this  point  of  possession,  2  Wms.  Saund.  47,  n.  (1) ;  7  T.  R.  398;  2 
Taunt.  306-309;)  so,  a  lord  shall  have  a  replevin  if  a  stranger  take  it;(/)  and 
so,  after  seizure,  a  lord  shall  be  charged  for  trespass  done  by  any  estray. (/j 

671.  A  swan  being  a  royal  bird,  may,  as  before  observed,  be  an  estray 
(see  ante,  §  665),  and  no  one  can  have  a  swan  mark  except  by  grant  or  pre- 
scription,(m)  and  by  the  22  Ed.  4,  c.  6,  now  repealed,  a  qualification  to 
keep  swans  was  required ;  and  although  a  subject  was  then  permitted  to 
have  swans,  yet,  if  they  were  without  a  mark,  if  any  such  swans  gained 
their  liberty,  and  were  found  in  open  common  rivers,  they  might  be  seized 
by  the  king's  officers  as  royal  birds  ;(h)  but  it  is  not  competent  to  seize  those 
birds  as  estrays,  if  they  be  lawfully  put  into  the  place  whence  they  have 
been  taken,  even  although  they  may  be  in  a  strange  manor  ;  thus,  in  tres- 
pass for  taking  swans,  the  defendant  made  a  claim  by  his  plea  to  estrays  as 
pertaining  to  his  lordship,  and  said  that  the  swans  had  strayed,  and  that 
proclamation  had  been  made,  and  that  as  soon  as  it  was  discovered  that  the 
swans  belonged  to  the  plaintiff,  they  were  delivered  up. 

The  plaintiff  replied,  that  he  was  seised  of  a  manor  adjoining  to  the  lord- 
ship in  question,  and  prescribed  to  have  swans  swimming  through  that  lord- 
ship from  time  immemorial;  and  further,  that  notice  had  been  given  to  the 
defendant  that  these  swans  were  the  plainlifl's ;  and  the  rcpHcation  was  held 
good,  for  the  plaintiff  might  lawfully  put  in  his  swans  in  the  place  where 
they  could  not  be  estrays,  any  more  than  cattle  oould  be  so  in  places  where 
|..^_.„-,  they  ought  to  *have  common,  thus  deciding  that  a  prescription  for 
L         -J  swans  to  swim  in  another's  manor  or  lordship  is  good.(o) 

But  a  prescription  for  swans  must  be  accurately  set  out,  and  therefore, 
where  one  prescribed  for  all  wild  sw^ans  which  are  animalsyer*  naturae,  and 
not  marked,  in  a  certain  creek,  the  prescription  was  held  bad,  and  it  was 
like  prescribing  for,  all  partridges  and  pheasants  within  a  manor,  which  a 
man  cannot  have  Jure  privilegli,  but  so  long  only  as  they  are  within  the 

(e)  Taylor  v.  James,  Noy,  119  ;  Godb.  151. 

(  /)  Burdet  v.  Mattliewmnii,  Clayt.  107. 

(S)  Harvie  v.  Blackcole,  Brownl.  236. 

(70  20  H.  8,  cited  Benl.  21,  pi.  38 ;  see  also  S.  C,  Dy.  109  a,  mar?. 

(i)  2  Keb.  589.  [k)  Bull.  N.  P.  33. 

(0  Pleydell  v.  Gosmore,  Hiitt.  67. 

(m)  Case  of  Swans,  7  Co.  Ifi.  (n)  7  Co.  16. 

(0)  Bro.  Estrays,  pi.  3,  citing  7  H.  6.  27. 


FRANCHISES. 


359 


place  ;(;?)  but  one  may  prescribe  to  have  a  game  of  swans  within  his  manor, 
as  well  as  a  warren  or  a  park ;((/)  and  so  a  custom  that  if  any  swan,  which 
hath  its  course  in  any  water  running  to  the  Thames,  within  the  same  county, 
comes  on  the  land  of  any  man  and  there  builds,  and  hath  cygnets  on  the 
same  land,  then  he  who  hath  the  property  of  the  swan  shall  have  two  of  the 
cygnets,  and  he  who  hath  the  land  shall  have  the  third  cygnet  which  shall 
be  of  less  value  than  the  other  two,  has  been  held  to  be  good  ;(r)  and  in  this 
case  there  were  two  plaintiffs,  one  who  was  the  owner  of  the  cock-birds,  and 
the  other  of  the  hens,  and  they  had  cygnets  between  them  ;  and  it  was  held 
that  the  plaintiffs  should  join  in  one  action,  because  by  the  custom  of  the 
realm,  which  is  the  common  law  in  such  cases,  the  cygnets  belonged  to  both 
the  owners  in  common,  and  should  be  divided  between  them  equally  ;(r)  so, 
in  Parker  v.  Combleford,(s)  it  is  said  that  the  case  2  R.  3,  pi.  15,  "  Custom 
for  Swans,"  that  the  owner  of  the  land  shall  have  a  ground-bird  is  good,  for 
the  ease  which  they  have  to  make  their  nests  there. 


*VII.  Eo  Ijabc  EJL^-iffs  anti  Bona  iFusftibotum  rt  iTrloniuiT. 


[*519] 


672.  What  is  Waif. 
What  it  is  not. 

673.  Goods  waived  forfeited  to  the  Queen. 

674.  Right  of  the  Lord  to  Waif. 

675.  Fugitive's  Goods,  when  forfeited  or 

otherwise. 


§  675.  How  claimed. 

676.  Forfeiture  of  Felon's  Goods. 
How  claimed. 
Fclo  de  se. 

Provision  of  7  &  8  Geo.  4,  c. 
28. 


§  672.  If  a  man  steal  goods,  and  being  pursued,  for  fear  of  being  appre- 
hended waives  the  goods  out  of  his  possession,  these  goods  are  said  to  be 
ivaif:(t^  or  if  to  ease  him  in  flight,  he  waives  them  ;(m)  so,  though  he  leaves 
the  goods  at  a  common  inVi;(.r)  but  if  he  has  not  the  goods  with  him  when 
he  flies,  being  pursued,  or  for  fear  of  being  apprehended,  then  they  are  not 
waived  or  forfeited,  but  the  owner  may  take  them  when  he  will  ;(a?)  so,  if 
the  owner  challenge  the  goods  upon  fresh  suit,  and  before  seizure,  it  seems 
they  shall  not  be  forfeited  ;(^)  so,  if  a  thief  steals  goods  and  conceals  them 
in  the  ground  or  other  secret  place,  and  afterwards  flies,  they  are  not  for- 
feited as  waif  ;(2')  so,  if  he  throws  them  into  the  house  of  another,  and  there 
leaves  them  and  flies  ',(z)  so,  if  he  takes  goods  as  a  trespasser,  and  Avaives 
lhem;(a)  so,  if  a  thief  leaves  a  horse  stolen  at  a  common  inn,  for  a  certain 
sum  by  the  week  for  his  meat,  it  is  no  waif  ;(6)  so,  the  goods  of  an  alien 
merchant  cannot  be  forfeited  as  waifs,  and  if  waived  by  the  felon  after  the 
alien's  death,  they  belong  to  the  executor  of  the  aHen.(c) 

ip)  Case  of  Swans,  7  Co.  15. 

(?)  Id.  16  b.  (r)  Id.  17  a.  (s)  Cro.  El.  725.  (/)  Foxlcy's  case,  5  Co.  109. 

(n)  Staundf.  P.  C.  186. 

(x)  2  Roll.  Abr.  809  ;  see  also  22  Vin.  Abr.  Waife,  408,  pi.  1,  2. 
{y)  Dickson's  case,  Hetl.  64. 

Iz)  Foxlcy's  case,  5  Co.  109 ;  S.  C.  nom.  Foxley  v.  Anneslcy,  Cro.  El,  693 ;  S.  C. 
Moor,  572. 

(«)  Staundf.  P.  C.  186.  (h)  2  Roll.  Abr.  809. 

(c)  Waller  v.  Hanger,  3  Bulst.  19.     See  also  Scroggs,  130, 


360  crabb's  law   of   real   property. 

*673.  All  goods  waived  are  forfeited  to  the  queen,  and  she  shall 
L  J  keep  them  as  her  own,(f/)  for  the  owner  loses  his  property  in  them, 
because  he  did  not  freshly  pursue  the  felon,(e)  and  the  queen's  bailiff,  or 
another  in  her  right,  may  seize  them  ;(/)  but  before  seizure  by  the  queen 
or  her  patentee,  the  owner  of  the  goods  may  take  them,  though  it  be  twenty 
years  after  the  stealing ;(/)  so,  after  seizure,  if  he  makes  fresh  suit  and 
attaints  the  felon ;(/)  but  see  contra  Bro.  Forfeitures  de  Terres,  pi.  110, 
citing  21  E.  4.  16 ;  Staundf.  P.  C.  186 ;  Kitch.  80 ;  Hale,  P.  C.  541,  and 
Rastal,  Restitution,  2,  where  it  is  said  that  the  property  is  changed  by  the 
seizure;  see  also  21  H.  8,  c.  11,  which  gives  restitution,  if  the  felon  be 
indicted  and  attaint  by  evidence  given  by  the  party. (^)  \ 

674,  Goods  forfeited  as  waif  may  belong  to  a  subject  by  the  grant  from 
the  Crown,  and  this  franchise  is  usually  annexed  to  manors;  but  waif  is  to 
be  claimed  only  by  special  grant  or  prescription,  and  does  not  belong  to  the 
lord  of  a  hundred  or  manor  by  reason  of  the  hundred  or  manor  ;(A)  but  to 
justify  seizing  of  stolen  goods,  it  must  be  alleged  that  a  felony  was  com- 
mitted, and  that  the  goods  were  waived  by  the  felon;  so,  in  an  action 
against  the  lord  for  misusing  a  horse  stolen  from  the  plaintiff,  who  alleged 
fresh  suit  and  that  the  felons  were  attainted,  it  was  held  that  the  defendant 
ouoht  to  have  traversed  the  fresh  suit  whereof  the  plaintiff  had  declared,  the 
property  being  thereby  preserved  ;(A;)  so,  it  seems  either  the  stealing  or  the 
waiving  may  be  traversed. (/) 

So,  the  better  opinion  seems  to  be  that  in  the  case  of  waifs  as  of  estrays, 

r*fi9n  i^^^  ^"''^'  §  ^^'^O  ^"^^^  ^^^^  "'^^'  ^'^^*^  *lrespass  or  trover  against  a 
L  J  stranger,  for  waif  taken  out  of  his  manor,  even  where  there  has  been 
no  seizure. (m) 

675.  Bonafugilivormn  are  the  proper  goods  of  him  who  flies  for  felony, 
for  upon  the  presumption  of  his  guilt  he  forfeits  all  his  goods  which  he  had 
at  the  time  of  his  flight  ;{n)  so,  if  the  jury  who  find  the  flight  acquit  him  of 
felony  ;(o)  so,  if  it  be  found  that  an  accessary  before  or  after  the  fact  fled  ;(;}) 
so,  also,  if  it  be  found  by  inquest  before  the  coroner  that  he  fled  ;(;;)  so,  a 
man  forfeits  his  goods  by  the  flight  found,  though  he  has  a  pardon  of  the 
felony,(/j)  or  was  killed  in  his  flight  ;(;>)  but  a  man  does  not  forfeit  his 
goods  by  flight,  if  he  is  not  indicted  in  his  lifetime,(;))  nor  if  the  flight  be 
found  before  a  coroner  who  has  no  jurisdiction, (7;) 

The  goods  of  fugitives  can  only  be  claimed  by  the  Crown,  or  by  grant 
from  the  Crown  ;(«7)  but  not  by  prescription,  for  they  are  not  forfeited  till 
found  upon  record  that  the  party  fled  for  the  felony,(5')  see  further  infra  § 
676. 

(«/)  Staundf.  P.  C.  186. 

(V)  Foxley's  case,  5  Co.  109 ;  S.  C.  nom.  Foxlcy  v.  Annesley,  Cro.  El.  693 ;  S.  C, 
Moor,  572. 

(/)  Staundf.  P.  C.  186.  (V)  5  Co.  Ill  ;  3  Inst.  242. 

(/()  Br.  Estrav,  pi.  2,  citing  44  E.  3.  19.  0)  Davics'  case,  Cro.  El.  611. 

(/f)  Rooke  V.  benny,  2  Leon.  192. 

(/)  Br.  Issues  joincs,  ])1.  68,  citing-  12  E.  4,  5. 

Cm)  F.  N.  B.  91,  B;  Kitcli.  80;  Scroggs,  132. 

(n)  Foxley's  case,  5  Co.  109  b.  (0)  Staundf.  P.  C.  183  b  ;  Foster,  272, 

ip)  Staundf.  P.  C.  184  a.  (3)  Foxley's  case,  5  Co.  109  b,  110. 


FRANCHISES.  36t 

676.  Bonafclomtm  are  the  goods  of  any  one  convicted  of  felonj',  for  he 
forfeits  to  the  queen  all  his  goods  and  chattels  which  he  had  at  the  time  of 
the  conviction  ;(r)  so,  if  a  man  hefelo  de  sc,  he  forfeits  all  the  g^ods  which 
he  had  at  his  death,  if  he  is  found  felo  de  se  by  inquest  before  the  coroner, 
or  by  presentment  before  justices,  who  have  conusance  of  felony. (r) 

The  goods  of  felons,  as  of  fugitives,  can  be  claimed  only  by  the  Crown  or 
by  a  grant  from  the  Crown, (r)  and  not  bj'  prescription,  see  ante,  §  675.  By 
such  grant,  the  grantee,  it  is  said,  shall  have  the  debts  and  special-  p^-ooT 
ties,  &c.,  as  well  as  *other  goods,  though  there  are  no  special  L  -^ 
words  ;(s)  so,  a  grant  of  bona  et  calallafelonum  will  not  pass  the  goods  and 
chattels  of  a  felo  de  se.{s'^ 

If  a  man  be  found  felo  de  se  by  the  coroner's  inquisition,  the  jury  ought 
also  to  find  whether  he  had  any  goods  and  chattels  at  the  time  he  committed 
the  felony,  or  not ;  and  if  he  had  any,  to  specify  the  same  in  an  inventory 
annexed  to  the  inquisition  ;(f)  but  by  7  &  G.  4,  c.  28,  s.  5,  it  is  provided 
that  where  any  person  is  indicted  for  treason  or  felony,  the  jury  impannelled 
to  try  such  person  shall  not  be  charged  to  inquire  concerning  his  lands,  tene- 
ments, or  goods,  nor  whether  he  fled  for  such  treason  or  felony. 


VIII.  Eo  tabc  JDcolsan'&s'. 


§  677.  Definition  of  a  Deodand. 

VVJien  Tilings  are  Deodand  or  other- 
wise. 
Things  movable. 
Coach. 


§  677.  Ship. 

Not  Things  fixed  to  the  Freehold. 
678.  How  forfeited. 

How  appropriated. 


§  677.  Deodands  are  defined  to  be  omnia  qnse  movent  ad  mortem  ;{t() 
and  therefore  every  beast,  or  movable  thing  inanimate,  which  occasions  the 
death  of  a  man  within  the  body  of  a  county,  without  the  default  of  the  per- 
son himself  or  another,  shall  be  forfeited  to  the  Crown  as  a  deodand,  though 
the  thing  was  not  in  motion  at  the  time,  if  it  be  movable  •,{x)  and  as  well 
Avhere  the  man  by  misadventure  falls  upon  the  thing,  as  where  the  thing 
falls  upon  him  ;(.t)  and  therefore  if  the  sword  of  B.  is  used  by  A.,  and  ano- 
ther *is  killed  with  it,  it  will  be  a  deodand  \[y)  and  formerly,  not  p*g23l 
only  the  thing  that  was  the  immediate  cause  of  death,  but  all  things  L  ^  -^ 
moving  with  it  were  held  to  be  deodands  ;  therefore,  if  a  man  riding  upon 
a  carriage  fell  from  it,  and  the  horses  drew  the  carriage  upon  him  by  which 
he  died,  the  horses  and  carriage  were  a  deodand  ;(z)  but  in  this  day,  if  a 
man  is  killed  by  the  wheel  of  a  coach  going  over  him,  the  wheel  only  is  the 
deodand,  as  being  the  immediate  cause  of  the  death  ;(a)  and  a  thing  which 

(r)  Id.  110. 

(s)  2  Roll.  Abr.  195;  sed  contrJi,  Lord  Northampton  v.  Lord  St.  Jolm,  2  Leon.  56 ; 
.lurado  v.  Grcgorj-,  1  Vent.  32;  R.  v.  Sutton,  1  Saund.  27.3;  S.  C,  1  Sid.  420;  S.  C,  2 
Keb.  526.  (0  1  Wins.  Saund.  272. 

(M)  Dv.  77  b  ;  Foxlcy's  case,  5  Co.  110.  (x)  Staundf.  P.  C.  20. 

(«)  3  Inst.  57. 

(?)  Staundf.  P.  C.  20  ;  Case  of  the  Lord  of  the  Manor  of  HanipFtoad,  1  Salk.  220. 

(a)  R.  V.  Grew,  Say.  249  ;  R.  v.  Rolfe,  lost.  Cr.  Law,  266. 


363        crabb's  law  of  real  property. 

does  not  move  with  that  which  causes  the  death  was  formerly  held  not  to 
be  a  deodand,  though  it  was  joined  to  it ;  as  if  a  man  falls  from  the  wheel 
of  a  carriage  and  is  killed,  but  the  carriage  does  not  move,  the  wheel  only 
should  be  forfeited  ;(6)  so,  if  a  man  riding  through  a  river  was  thrown  by 
the  violence  of  the  stream  and  drowned,  then  the  horse  or  carriage  was  not 
considered  as  having  moved  to  the  death,  and  should  not  therefore  be  forfeit- 
ed.(c) 

A  vessel  or  boat  in  aqua  dulci  may  become  a  deodand,  but  not  in  aqua 
salsa  ;[d)  therefore,  where  a  ship  lying  at  Redriff,  in  Kent,  turned  over  at 
low  water  and  killed  a  shipwright  at  work  under  her,  it  was  held  to  be  a 
deodand  ;(e)  but  where  a  man  is  killed  by  a  fall  from  a  ship  into  fresh  water, 
the  ship,  but  not  the  merchandize  therein,  will  be  deodand  ;(/)  so,  formerly, 
a  distinction  was  taken  between  persons  within  the  age  of  discretion  and 
those  who  were  not,(g-)  but  this  distinction  is  not  observed  now.(^) 
^  Nothing  fixed  to  the  freehold  shall  be  a  deodand,  as  a  *door  or 

L  J  gate  of  a  house,(i)  or  a  bell  in  a  church  \[k)  but  if  the  thing  is  pre- 
viously severed  from  the  freehold  it  may  be  a  deodand,  as  where  a  man  was 
killed  by  the  sail  of  a  wind-mill  which  by  the  violence  of  the  wind  had  been 
severed  from  the  mill.(/) 

678.  A  deodand  shall  be  forfeited  to  the  queen,  or  to  him  who  claims  by 
patent,(m)  but  no  man  can  prescribe  for  it,  it  must  be  by  the  grant  of  the 
Crown  ;(n)  and  by  inquisition  before  the  coroner  it  must  be  found  that  it  is 
deodand,  and  the  value  set.(o)  But  deodands  do  not  meet  with  countenance 
in  Westminster  Hall ;  when  a  jury  has  found  too  little,  the  courts  will  not 
interpose  in  favour  of  the  Crown  or  of  the  lord  of  the  franchise,  though  they 
will,  if  it  has  found  too  much,  in  favour  of  the  subject.(;o) 

By  the  4  &  5  W.  &  M.  c.  22,  lords  of  manors  and  others  having  grants 
of  deodands  must  have  the  same  inroUed  in  the  Crown  Office. 

Formerly,  deodands  forfeited  to  the  Crown  were  disposed  of  in  eleemosy' 
nam,  to  some  charitable  purpose  by  the  king's  almoner,(7)  but  they  are  now 
appropriated  as  part  of  the  casual  revenues  of  the  Crown. (r) 

(/))  Staundf.  P.  C.  20. 

(c)  Lord  Cliandos's  case,  Cro.  Jac.  483  ;  S.  C,  Poph.  136  ;  S.  C,  nom.  R.  v.  Ld.  Caven- 
dish,  2  Roll.  Rep.  23 ;  S.  C,  cited  1  Salk.  220. 

{d)  Biact.  1.  3,  c.  5,  fol.  122  ;  3  Inst.  57  ;  2  Hale,  P.  C.  422  et  seq.;  Hawk.  P.  C,  c.  26. 

(p)  2  Molloy,  225,  c.  1,  s.  13.  {f)  Hawk.  P.  C.  c.  26,  s.  6. 

(o-)  3  Inst.  57.  (A)  Hawk.  P.  C.  c.  26.  (i)  1  Sid.  207, 

{k)  Axminster  Parish  case,  1  Lev.  136;  S.  C,  1  Sid.  207;  S.  C,  Ld.  Raym,  97;  see 
also  R.  V.  Wheeler,  6  Mod.  187. 

(Z)  1  Sid.  207.  (»n)  Dy.  77  a,  107  h. 

(71)  Foster's  Cr.  Law,  266.  (o)  Staundf.  P.  C.  2]  a. 

( p]  Foster's  Cr.  Law,  266.  iq)  3  Insl.  57. 

(r)  Foster's  Cr.  Law,  265,  266 ;  Molloy,  225  ;  Lex.  Man.  72. 


FRANCHISES. 


363 


*IX.  Eo  Ijabe  a  ifttarftet  ov  J?afr. 


[*595] 


680. 


681. 
682. 


§  6T9.  Wlial  is  a  Market  and  a  Fair. 

Claimed  by  Prescription  or  Grant. 

Place  of  holdin<r  a  Market,  «&c. 

Nature  and  Extent  of  the  Right. 

Ancient  Market. 

Time  of  holding  a  Fair. 

Wlio   bomid    by    Sale    in    Market 

overt. 
Exceptions  to  the  Rule. 

The  Queen. 

When  Toll  has  not  been  paid. 

Sale  in  a  Shop. 

There   must  be    a  Contract  as 
well  as  a  Sale. 

Covenous  Sale. 

A  Sale  not  a  Gift. 

Time  and  Place. 

In  case  of  pawning. 
Definition  of  a  Toll. 
When  payable  or  otherwise. 
For  Things  brought  into  the  Market. 
For  Goods  sold  in  Specie. 
By  whom  payable  or  otherwise. 


683. 


684. 


684.  Not  by  the  Queen. 

Nor  Tenant  in  Ancient  Demesne. 

685.  Unreasonable  Toll. 

686.  What  is  Stallage. 
Right  to  Stallage. 

687.  What  is  Piccage. 

688.  Definition  of  Piepoudre  Court. 

689.  Clerk  of  the  Market. 

690.  Right    to    a    Market,   &c.,   not  ex- 

tinguished by  Unity  of  possession. 
But  may  be  forfeited  by  Nonuser. 
By  Misuser. 

691.  What  is  a  Disturbance  of  the  Right 

to  a  Market,  iSlc. 
What  User  will  confer  a  Right. 

692.  Grantee  of  a  newly  erected  Market. 

693.  Obligation  to  provide  Accommoda- 

tion. 

694.  Right  to  Tolls. 

Right  of  Corporations  and  Lords  of 
Manors. 

695.  Remedies. 


§  679.  A  market  is  the  privilege  within  a  town  to  have  a  market. (s) 
Every  fair  is  a  market,  but  not  e  contra. {t"^  This  subject  embraces  the 
following  particulars  : — 

1.  How  a  market  or  fair  is  claimed. 

2.  When  and  how  held. 

3.  Effect  of  sale  in  a  market  or  fair. 

4.  Court  of  Piepoudre. 

5.  Duties  payable  in  respect  of  a  market  or  fair. 

6.  How  lost. 

7.  Disturbance  of  a  market  or  fair. 


*L  How  a  Market  or  Fair  is  daiyned. 


[*526] 


679.  None  can  have  a  market  or  fair  but  by  grant  or  prescription  ;(w)  but 
a  grant  of  a  fair  or  market  has  usually  a  clause  quod  non  sit  ad  nocmnen- 
tum,  &c. ;  therefore,  if  it  be'to  the  prejudice  of  the  queen  or  others  in  any 
respect,  the  patent  shall  be  avoided  ;{x)  and  if  such  market  or  fair  be  to  the 
nuisance  of  any  one,  the  patent  may  be  repealed  by  scire  facias{y')  though 
a  writ  of  ad  quod  damnum  had  preceded  the  grant,(xr)  and  the  words  nisi 
sit  ad  nocumentum,  &c.,  have  been  omitted  in  the  grant  ;(o)  but  whether 
it  be  to  the  nuisance  or  not  is  a  matter  of  evidence. (6) 


(s)  Blount,  nom.  verb.  Market.  («)  2  Inst.  401. 

(m)  2  Inst.  2-20.  (x)  Id.  406. 

\y)  R.  V.  Butler,  3  Lev.  222  ;  S,  C.  nom.  Sir  Oliver  Butler's  case,  2  Vent.  344  ;  sec  also 
R.  V.  Marsden,  3  Burr.  1818.  (?)  Butler's  case,  2  Ventr.  344. 

(a)  2  Roll.  Abr.  140.  {h)  Yard  v.  Ford,  2  Saund.  174. 


364  crabb's   law   of   real  property. 

2.  Where  and  how  a  Market  is  to  be  held. 

680.  The  usual  place  where  a  market  is  held  is  the  market  place,  not  every 
place  within  the  same  town.(c)  If  the  queen  grant  a  fair  generally,  the 
grantee  may  keep  it  where  he  pleases  ;(rf)  so,  if  she  grant  a  fair  to  be 
held  in  such  a  town,  place,  &c.,  he  may  keep  it  in  Avhat  part  of  the  town 
he  pleases, (f/)  and  see  also  Mosley  v.  Walker,(e)  in  which  latter  case  it  is 
said,  "  Generally  speaking,  where  a  market  is  granted  to  a  particular  indi- 
vidual, he  may  either  permit  every  place  within  the  specified  limits  of  the 
market  to  be  the  place  where  articles  may  be  sold,  or  he  may,  if  he  thinks 
fit,  fix  upon  a  particular  place  within  which  the  sale  shall  take  place,  and 
he  may  say  that  different  places  shall  be  appropriated  to  the  sale  of  different 
articles."     In  Curvven  v.  Salkeld,(/)  it  was  decided  "  That  the  lord  of  a 

j^  -  -,  market  might  determine  in  what  part  of  the  township  it  should  be 
L  -^  *held,  and  might  shift  it  from  place  to  place,  or  confine  the  right  of 
holding  the  market  to  a  particular  place. "(g-) 

The  lord  of  an  ancient  market  may,  by  law,  have  a  right  to  prevent  other 
persons  from  selling  goods  in  their  private  houses  situated  within  the  limits 
of  his  franchise, (A)  but  "It  cannot  be  laid  down  as  a  general  rule  and  prin- 
ciple of  law,  that  the  grant  of  a  market  for  the  sale  of  certain  things  neces- 
sarily carries  with  it  an  exclusion  of  the  right  of  sale  of  similar  commodities 
in  a  private  house. "(i)  »'  The  question  (submitted  to  the  jury)  was,  whether 
upon  the  evidence  the  franchise  of  the  plaintiff"  entitled  him  to  that  exclu- 
sive right.  Of  that  there  was  abundant  evidence,  for  where  there  is  a  grant 
of  franchise,  the  exercise  of  the  right  under  the  grant  is  evidence  of  the 
nature  and  extent  of  the  grant. "(A;)  But  the  grantee  of  such  a  franchise  is 
bound  to  provide  suitable  accommodation  for  those  who  attend  the  market. (A-) 
"I  take  it  to  be  implied  in  the  terms  in  which  a  market  is  granted,  that  the 
grantee,  if  he  confine  it  to  particular  parts  within  a  town,  shall  fix  it  in 
such  parts  as  will  from  time  to  time  yield  to  the  public  reasonable  accom- 
modation, and  that  if  the  place  once  allotted  ceases  to  give  reasonable  accom- 
modation, he  is  bound,  if  he  has  land  of  his  own,  to  appropriate  land  on  which 
to  hold  it,  or  if  not,  to  get  land  from  other  people,  in  order  that  the  market, 
which  was  originally  granted  for  the  benefit  of  the  public,  as  well  as  for  the 
benefit  of  the  grantee,  may  be  efTectually  held. "(A;)  But  this  is  a  question 
for  the  jury,  and  having,  as  it  appears  in  this  case,  been  left  properly  to 
them,  the  Court  refused  to  disturb  the  verdict. 

681.  By  the  stat.  Win.,  13  Ed.  1,  c.  6,  which  remains  unrepealed,  (see 
Dig.  P.  i.  Chronol.  Tab.,)  fairs  or  markets  shall  not  be  kept  in  church- 
yards. By  the  2  Ed.  3,  c.  15,  the  lord  of  the  fair  shall  publish  for  what 
time  it  shall  continue,  and  shall  not  hold  beyond  his  due  time.     By  the  5 

-,  Ed.  3,  c.  5,  *if  a  merchant  sell  after  the  time  published,  he  shall 
L         -'  forfeit  double  the  goods  sold.    By  the  27  H.  6,  c.  5,  a  fair  or  market 

(c)  Godb.  131.  (d)  Dixoa  v.  Robinson,  3  Mod.  108. 

(e)  7  B.  &  C.  41.  ( /")  3  East,  538. 

("•)  Per  Ba3'ley,  J.,  Mosley  v.  Walker,  7  B,  &  C.  41.-^ 

(h)  Mosley 'v.  Walker,  sup.  (i)  Per  Lord  Tentcrden,  C.  J.,  lb. 

{k)  Per  Bayley,  J.,  lb. 

»Eng.  Com.  Law  Reps.  xiv.  13.  , 


FRANCHISES.  365 

is  not  to  be  held  upon  principal  feasts,  Sundays  or  Good  Friday,  (four  Sun- 
daj^s  in  harvest  excepted,)  upon  forfeiture  of  all  goods  sold  to  the  lord  of  the 
franchise.  And  he  that  has  no  day  for  it,  but  only  such  festival,  shall  hold 
his  fair  or  market  within  three  days  before  or  after  proclamation  being  first 
made ;  and  he  that  has  other  days  sufRcient,  shall  hold  it  the  full  number  of 
days  allotted  for  his  market  or  fair,  such  festival  days,  &c.,  excepted  ;  and 
this  was  in  confirmation,  as  it  seems,  of  the  common  law ;(/)  but  a  pre- 
scription to  hold  a  fair  on  the  29th  Sept.  is  good,  though  it  may  be  a  Sundaj^ 
for  a  fair  on  that  day  is  not  void,  though  the  goods  then  sold  shall  be  for- 
feited by  the  27  H.  6,  c.  5.(m) 

3.  Effect  of  a  Sale  in  3Iarket  overt. 

682.  It  has  been  said,  that  at  common  law  all  sales  and  contracts  of  any- 
thing vendible  in  fairs  or  markets  overt,  should  not  only  be  good  between 
the  parties,  but  should  bind  those  that  had  right  thereunto,  even  infants, 
femes  covert,  idiots,  and  7ion  compotes  mentis,  also  persons  beyond  sea  and 
and  in  prison,  and  so,  executors  and  administrators  ;(n)(l)  but  this  rule 
admits  of  many  exceptions  and  qualifications  : — 

1.  It  shall  not  bind  the  queen  as  to  any  of  her  goods  sold  in  market  overt 
by  any  person,  (o) 

2.  It  must  be  such  a  sale  as  will  change  the  property  ;(/))  when,  there- 
fore, horses,  &c.,  are  sold  in  market  overt  without  paying  toll,  then  the  sale 
is  void  by  the  2  Ph.  &  M.  c.  7,  and  31  El.  c.  12,  (see  Dig.  P.  i.  tit.  Horses,) 
and  the  property  is  not  changed  \{q)  so  it  is  said  in  an  early  case,  that  the 
property  of  goods  is  not  changed  by  sale  in  market  *overt,  unless  pj^Koq-i 
toll  be  paid  ;(r)  and  in  Comyns  v.  Boyer,(s)  it  is  expressly  held,  L  J 
that  in  pleading  market  overt,  it  is  not  necessary  to  state  that  toll  is  paid, 
for  payment  of  toll  (it  is  added)  is  not  of  necessity,  and  in  may  vills  no  toll 
is  used  to  be  paid. 

3.  Although  a  sale  in  a  shop  in  London  is  good,  for  there  is  market  overt, 
every  day  except  Sunday,  yet  the  sale  to  be  valid,  must  be  in  the  open  shop, 
not  in  a  warehouse,  nor  in  any  other  part  of  the  house  ;(f)  so,  a  sale  in  a 
shop  is  not  a  sale  in  market  overt,  unless  the  goods  are  there  proper  to  be 
sold ;  therefore,  where  stolen  plate  was  sold  openly  in  a  scrivener's  shop 
on  the  market  day,  held,  that  this  sale  should  not  change  the  property,  for 
a  scrivener's  shop  is  not  a  market  overt  for  plate  ;  sed  secus  if  the  sale  had 
been  openly  in  a  goldsmith's  shop  ;(a:)  so,  the  queen  cannot  grant  that  a 
shop  should  be  a  market  overt,  (y) 

(Z)  2  Inst.  220.         (m)  Comyns  v.  Boyer,  Cro.  El.  485.         (n)  2  Inst.  713. 
(o)  Plowd.  243  ;  Doct.  and  Stud.  3. 

(/})  Perk.,  s.  93 ;  Jenk.  83,  pi.  62  ;  Bro.  Property,  pi.  39,  citing  9  H.  6,  45. 
{q)  Case  of  Market  overt,  5  Co.  83  ;  Comyns  v.  Boyer,  Cro.  El.  485. 
(r)  Bro.  Property,  pi.  39,  citing  35  H.  6.  29,  but  Brook  says  quaere. 
(s)  Cro.  El.  485. 

{t)  Bishop  of  Worcester's  case.  Moor,  360 ;  see  also  Clifton  v.  Chancellor,  Moor,  625 ; 
Dy.  99  b.  marg.,  pi.  66  ;  Panton  v.  Hasscll,  Hct.  63. 

(r)  Case  of  Market  overt,  5  Co.  83.  (y)  Clifton  v.  Chancellor,  sup. 


(1)  Kent  in  his  Com.,  vol.  2,  323-4,  saj'?,  these  markets  overt  depend  on  special  customs,  ^ 
and  this  rule  does  not  apply  in  this  country. 
December,  1846. — 24 


366  CR abb's  lawof   real  property. 

4.  The  contract  as  well  as  the  sale  must  be  in  market  overt,  therefore, 
where  the  contract  for  the  sale  of  stolen  goods  was  made  out  of  the  market, 
held  that  the  property  was  not  changed  by  the  completion  of  the  sale  in  the 
market  overt. (2) 

5.  If  the  sale  be  covenous,  it  \vi\\  not  bar  the  right  of  him  that  has  right, 
as  where  the  buj'^er  knows  that  the  seller  has  no  right ;(«)  or,  where  the 
seller  is  of  such  an  age  that  the  buyer  must  know  him  to  be  an  infant  ;(a) 
or,  where  the  seller  is  known  to  be  a  feme  covert,  not  selling  with  the  con- 
sent of  the  husband. (a) 

6.  It  must  be  a  sale  for  valuable  consideration,  not  a  gift,  for  fairs  and . 
markets  were  not  instituted  for  gifts,  but  for  sales. (o) 

7.  So,  a  sale  must  not  be  in  the  night,  but  must  be  *hetween  the 
L  -I  sun  rising  and  sun  setting,  yet  a  sale  in  the  night  will  be  good  be- 
tween the  parties,  although  it  will  not  bind  a  stranger  who  has  right. (6) 
So,  a  sale  in  a  covert  place  within  a  fair  or  market  is  bad.(c.) 

8.  A  custom  that  a  sale  in  market  overt  shall  be  binding  is  bad,  for  it 
t^nds  to  a  monopoly. (</) 

9.  There  cannot  be  a  market  overt  for  pawning,  and  held  that  the  Court 
cannot  take  notice  of  the  custom  of  London,  unless  it  has  been  certified  by 
the  recorder. (e) 

4.  What  Duties  are  payable  at  a  Market  or  Fair. 

683.  The  principal  duties  usually  payable  at  a  fair  or  market  are  toll, 
stallage,  or  piccage. 

Toll  is  a  reasonable  sum  due  to  the  lord  of  the  fair  or  market,  for  things 
sold  there  which  are  tollable ;(/)  but  toll  is  not  of  common  right  incident  to 
a  fair  or  market, (/)  and  cannot,  therefore,  be  claimed  except  by  grant  or 
prescription, (fi-)  and,  therefore,  it  is  not  suiBcient  to  allege  the  grant  of  a 
market,  with  all  tolls  belonging,  but  there  must  be  alleged  an  express  grant 
or  a  prescription  ;(A)  so,  toll  is  payable  of  common  right  only  on  live  cattle, 
not  of  victuals  or  wares,  &c.  ;(A)  and  although  as  a  rule,  toll  cannot  be  paid 
at  any  market  for  thin.s-s  brought  thither,  only  for  things  sold,  yet,  by  cus- 
tom, toll  shall  be  paid  for  every  thing  brought  to  market,  but  if  it  is  a  new 
fair,  custom  will  not  support  it.(t)  So,  if  an  ancient  fair  or  market  returns 
to  the  Crown,  the  toll  is  not  extinct ;  but  if  the  queen  re-grants  the  fair,  the 
toll  passes  ;(A:)  sed  secus  if  she  grants  a  fair  de  novo  cum  omnibus  liberlati- 
bi/s  pertinent'' ,  he  shall  not  have  toll. (A-) 

Toll  can  only  be  taken  in  respect  of  things  actually  brought  into  the  mar- 

j,        -,  ket  and  there  sold,  therefore,  a  prescription  *for  toll  of  corn  brought 

L         J  into  a  town  to  be  sold  on  a  market  day  there,  whereof  only  part  is 

(z)  Dy.  99,  pi.  66.  (a)  2  Inst.  713 ;  W.  Jo.  IG4. 

(/;)  2  Inst.  714.  (c)  Moor,  360  ;  1  And.  44 ;  Poph.  84. 

In)  Cliflon  v.  Cliancellor,  Moor,  625. 

(e)  Hartop  v.  Hoare,  1  Wils.  8  ;  S.  C,  2  Str.  1187.  (/)  2  Inst.  220. 

{g)  Heddy  v.  Welhouse,  Moor,  474. 

(/;)  Kerby  v.  Whichclow,  2  Lutvv.  1502,  recognized  in  Wells  v.  Miles,  4  B.  &  A.  564.P 

(/)  1  Leon,  218;  ilollaway  v.  Smith,  Stra.  1171.  {k)  Palm.  78. 

pEng.  Com.  Law  Reps.  vi.  517. 


FRANCHISES.  367 

pitched  within  the  market  for  sale,  and  there  sold,  is  bad,  Wells  v.  Miles,(/) 
and  Hill  v.  Smith. (m) 
«  In  the  former  of  these  two  cases  it  was  said,  that  the  king  could  not  grant 
a  toll  for  thinofs  not  broucfht  into  the  market,  but  that  the  vill  in  that  case 
should  be  taken  for  the  market;  in  the  latter  case  it  was  held,  that  a  pre- 
scription for  toll,  in  respect  of  goods  sold  by  sample  and  afterwards  brought 
into  the  market,  could  not  be  supported. 

But  a  claim  of  toll  to  be  taken  in  specie  for  goods  sold  in  a  market  is  sup- 
ported by  evidence  of  a  right  to  toll  for  goods  brought  into  the  market  and 
there  sold,  without  shewing  any  right  to  toll  for  goods  sold  in  the  market, 
though  not  brought  there,  Moseley  v.  Pierson;(n)  and  it  is  there  said,  "The 
expression,  a  sale  in  the  market,  imports  that  the  goods  sold  are  brought 
into  the  market  and  ready  to  be  delivered  to  the  purchaser.  Now,  here  the 
claim  is  of  a  toll  in  specie,  which  necessarily  implies  that  the  commodity  in 
respect  of  which  the  toll  arises  is  brought  into  the  market. "(o) 

684.  Regularly,  toll  shall  not  be  paid  before  the  sale,  for  it  is  due  from 
the  buyer  and  not  from  the  scller,(7;)  unless  there  be  a  special  custom  to 
the  contrary  ;((/)  but  the  queen  shall  not  pay  toll,(j')  so,  tenants  in  ancient 
demesne  are  exempt  from  the  payment  of  toll,(?-)  and  the  privilege  extends 
as  well  to  tenants  at  will  as  to  tenants  for  life  or  years, (s)  and  to  tenants 
who  hold  of  a  subject  as  of  the  queen  ;(?)  so,  it  extends  to  the  lord  him- 
self ;(i<)  but  the  ^exemption  is  only  in  respect  of  such  things  as  r-*rroo-] 
arise  or  grow  on  the  land,  or  such  as  are  bought  for  manuring  it,  L  -* 
and  for  the  necessary  use  of  the  tenant  and  his  family,  and  does  not  extend 
to  general  merchandise, (a*)  and  he  need  not  prescribe  for  the  privilege,  for 
it  is  incident  to  his  estate,  therefore  it  is  suflicient  to  sa}'  that  he  is  tenant 
and  inhabitant  within  the  manor  of  A.,  which  is  ancient  demesne, (?/)  and  it 
seems  not  necessary  to  allege  notice  that  he  is  tenant  in  ancient  demesne, 
although  it  may  be  advisable  so  to  do.{y^ 

So,  if  a  man  has  a  grant  to  be  discharged  of  toll  in  respect  of  goods 
bought  for  his  own  use  and  bought  since  his  grant  ;(z)  so,  he  shall  be 
exempted  in  a  fair  or  market  of  the  queen  •,[z)  and,  though  the  grant  be  for 
her  only,  and  not  for  her,  her  heirs  and  successors,  yet  it  is  good  against  the 
successor.  («) 

A  grantee,  to  be  quit  of  toll,  may  plead  his  exemption  ;(i)  so,  an  inhabit- 
ant of  a  borough  exempted  by  charter  •,{b)  so,  an  inhabitant  of  the  duchy  of 
Lancaster  ;(c)  and  a  prescription  for  an  inhabitant  is  good,  being  for  a  dis- 
charge, [d") 

By  the  2  &  3  Ph.  &  M.  c.  7,  it  is  provided,  that  the  owner  of  every  fair 

(Z)  4  B.  &  A;  564,  recognizing  Kerby  v.  Whichelow,  2  Lutw.  1502. 
(m)  4  Taunt.  520.  (n)  4  T.  R.  104. 

(o)  Per  Lord  Kenyon,  C.  J.,  Moseley  v.  Pierson,  4  T.  R.  104.  (/<)  2  Inst.  221. 

(q)  Leight  v.  Pym,  2  Lutw.  1 331.  (r)  2  last.  221. 

(s)  The  case  of  the  Town  of  Leicester,  2  Leon.  191. 
(t)  lb.;  see  also  Savery  v.  Smith,  2  Lutw.  1146. 
(m)  Bro.  Aunc.  Demesne,  pi.  43  ;  Savery  v.  Smith,  sup. 

(x)  Ward  v.  Knight,  Cro.  El,  227;  S.  C.,  1  Loon.  232;  but  see  F.  N.  B.  228;  1  Roll. 
Abr.  321.  iy)  Savery  v.  Smith,  2  Lutw.  1146. 

(2)  2  Inst.  221.  (r/)Yelv.  15. 

lb)  Leiglit  V.  Pym,  2  Lutw.  1332.  (c)  Osbuston  v.  James,  2  Lutw.  1379. 

(d)  Smith  V.  Gatewood,  Cro.  Jac.  152,  recognised  in  Osbuston  v.  James,  sup. 


368  crabb's   law   of   real   property. 

or  market  should  appoint  one  in  a  special  open  place  to  take  the  toll,  and 
enter  the  names  and  dwellings  of  all  persons  parties  to  a  bargain  for  a  horse, 
and  the  colour,  with  one  special  mark  of  such  horse,  and  by  the  31  El.  c. 
12,  the  bookkeeper  is  to  make  no  entry,  unless  he  truly  know  the  seller  of 
the  horse  or  his  voucher,  their  names  and  dwellings,  and  then  he  shall 
truly  enter  the  same  and  the  price  of  the  horse,  on  pain  of  5/.  for  every 
default. 

685.  If  the  toll  granted  be  unreasonable,  the  grant  will  be  void  ;(e)  so,  by 
r*-qq-i  ^^^^  ^^^^'  ^est.  1,  3  Ed.  1,  c.  3,  if  the  lord  *take  outrageous  toll, 
L  '  -■  the  king  shall  take  the  franchise  ;  and  if  taken  by  a  bailifl'  without 
the  command  of  the  lord,  he  shall  render  to  the  plaintiff  so  much  more  as 
he  has  taken,  and  shall  be  imprisoned  for  forty  days.  An  outrageous  toll 
is  any  toll  when  there  is  none  due,  or  the  party  is  discharged  of  toll,(y")  or 
if  more  be  exacted  than  is  due;(/)  and,  therefore,  an  action  on  the  case 
lies  against  him  that  takes  an  outrageous  toll,  that  is,  of  him  that  ought  to 
be  quit,(g-)  and  the  judges  are  to  determine  whether  the  toll  be  reasonable 
or  no. (A) 

686.  Stallage  is  a  duty  for  the  liberty  of  having  stalls  in  a  fair  or  market, (i) 
or  of  removing  them  from  one  place  toanother.)/)  Erecting  a  stall  in  a  market 
is  not  of  common  right ;  therefore,  whoever  will  have  a  stall  in  a  market 
must  first  have  a  license  for  that  purpose  from  the  owner  of  the  soil,  or 
otherwise  trespass  lies,  Northampton  (Mayor,  &c.)  v.  Ward  ;{])  and  it  is 
there  said,  "Every  man  has  of  common  right  a  liberty  of  coming  into  any 
public  market  to  buy  and  sell  without  paying  any  toll,  if  it  be  not  due  by 
custom  or  prescription,  yet  if  he  wants  any  particular  easement  or  conve- 
nience, as  a  stall  in  the  market,  he  must  have  the  license  of  the  owner  of  the 
soil  for  that  purpose,  if  there  be  no  particular  sum  fixed  by  the  custom  of 
the  market  for  stallage  ;  if  there  be  a  fixed  sum  or  duty  by  custom,  that  can- 
not be  exceeded,  but  still  he  must  agree  with  the  owner  of  the  soil  ;"(A:)  so, 
it  is  a  trespass  to  set  tables  in  a  market  place  for  the  sale  of  goods  thereon, 
without  leave  of  the  owner  of  the  soil. (A 

The  owner  of  a  house  next  to  a  fair  or  market  cannot  open  a  shop  for 
selling  in  a  market  without  payment  of  stallage,  for  if  he  takes  the  benefit 
rs^qj.-]  0^  ^h^  market,  he  ought  *to  pay  the  duties  there. (7n)  If  a  man  pre- 
L  -■  scribe  for  a  toll,  that  is  pro  quc'tlibet  stal/a,  it  is  well,  for  toll  is  a 
general  word  ;(n)  by  special  custom,  a  man  shall  have  toll  for  goods  in  a 
market  sold  or  unsold, (o)  but  that  seems  to  be  for  stallage. (/)) 

687.  PIccage  is  a  duty  for  picking  holes  in  the  lord's  ground  for  the 
posts  of  the  stalls. (/y)  Stallage  and  piccage  are  incident  to  the  soil,  for  the 
right  to  a  market  and  the  right  to  the  soil  are  very  different  things,  and 
these  rights  may  belong  to  different  persons ;  therefore,  if  the  queen  grant 

(e)  2  Inst.  220  ;  Heddy  v.  Whcelhousc,  Cro.  El.  558 ;  see  also  Moor,  474  ;  Yelv.  1 3. 
(  0  2  Inst.  220.  (g)  Wood  v.  liawkshead,  Yelv.  1.3.  (h)  2  Inst.  222. 

(t)  Palm.  77.  ( j)  1  Wils.  109  ;  S.  C,  2  Str.  12,  .38. 

(A)  Per  Lcc,  C.  J.,  lb.  (/)  Norwich  (Mayor,  &c.)  v.  Swan,  1  Bl.  1116. 

(m)  2  Roll.  Abr.  123.  (n)  2  Lutw.  1519.  (o)  Id.  1336. 

ip)  Com.  Dig.  Market,  (F.  1.)  (7)  Palm.  77. 


FRANCHISES.  369 

a  fair  or  market  with  toll  certain  to  one  and  his  heirs,  to  be  held  within 
land  that  is  Borough-English,  and  the  grantee  dies,  the  heir  at  the  common 
law  shall  have  the  fair  or  market  and  the  toll,  but  the  youngest  son  shall 
have  the  piccage  and  stallage  with  the  soil  by  the  custom. (r) 

5.  Court  of  Piepoudre, 

688.  This  court  is  incident  to  a  market  as  well  as  a  fair,  in  the  same 
manner  as  a  court-baron  is  to  a  manor,(s)  and,  by  custom,  may  be  held 
where  there  is  no  fair  or  market. (/)  It  is  a  court  of  record  in  which  the 
steward  is  the  judge, (?/)  and  to  this  court  the  following  things  are  essential: 
— 1.  The  cause  of  action  must  arise  in  the  time  of  the  fair  or  market,  it 
cannot  take  notice  of  transactions  happening  on  a  different  day  than  that  on 
which  it  sits.(.r)  2.  It  must  relate  to  things  which  concern  the  market; 
therefore,  for  slander  of  wares  previous  to  the  market,  the  court  has  no  juris- 
diction.(y)  3.  It  cannot  be  held  before  the  mayor,  or  *olher  person  p*-q-T 
than  the  steward,  by  special  custom. (z)  4.  The  jurisdiction  shall  L  ^J 
be  of  contracts  in  the  same  fair  or  market,  of  goods  there  bought  or  sold, (a) 
or  for  battery  or  disturbance  there. (t/)  5.  It  must  not  be  for  things  done 
out  of  the  precinct  of  the  fair  or  market,(c)  and  by  the  17  E.  4,  the  steward 
shall  not  hold  plea  upon  pain  of  5/.,  unless  the  plaintiff  or  his  attorney 
swear  that  the  contract,  &c.,  in  the  declaration  mentioned  was  within  the 
time  and  precinct  of  the  fair  or  market.  And  if  it  be  sworn,  the  defendant 
may  plead  in  abatement  or  under  issue  that  it  was  not;  and  if  there  be  no 
oath  or  it  be  found  for  the  defendant,  the  plaint  shall  be  dismissed,  and  the 
party  left  to  his  remedy  at  common  law.  But  such  oath  need  not  appear 
upon  the  record  ;(c)  so,  if  it  does  not  appear  in  pleading  that  the  suit 
there  was  for  a  matter  within  the  jurisdiction,  it  will  be  void;((:/)  so,  a  penal 
information  will  not  he  in  this  court,  but  judgment  given  on  it  is  not  void 
but  voidable. (p) 

689.  A  right  to  appoint  a  clerk  to  the  fair  or  market  is  also  incident  to 
the  franchise  ;(§•)  his  office  consists  in  inquiring  whether  the  weights  and 
measures  are  according  to  the  standard. (o-)  He  is  entitled  to  his  reasonable 
fees,  but  he  cannot  prescribe  to  have  2d.  or  any  other  rate  for  viewing  and 
examining  measures. (A) 

6.  How  lost  or  otherwise. 

690.  Fairs,  markets,  and  tolls,  as  also  free  warren,  are  not  extinguished 
by  the  land  coming  to  the  Crown,  with  the  liberties,  although  it  is  otherwise 
with  waifs,  estrays,  felons'  goods,  and  such  like  liberties. (/)     But  this  fran- 

(j)  Heddy  v.  Welhouse,  Moor,  474,  cited  Northampton  (Major,  &c.)  v.  Ward,  1  Wils, 
109-  (s)  Howel  V.  Johns,  Cro.  El.  773.  (/;  4  Inst  472. 

(u)  lb. ;  sec  also  Skinn.  33.  (x)  Howcl  v.  Johns,  sup. 

iy)  4  Inst.  272 ;  10  Co.  73 ;  Howel  v.  John?,  sun.  (z)  Anon.,  Skirm.  33. 

(«)  -1  Inst.  272.  (Jj)  Howel  v.  Johns,  Cm.  El.  773.  (r)  4  Inst.  272. 

(rf)  Anon.,  Skinn.  33.  (c)  Wilkinson  v.  Nethersol,  Cro.  El.  530 

(0-)  4  Inst.  273.  (A)  Id.  274. 

(t)  Heddj  V.  Welhouse,  Moor,  474. 


370  crabb's  law  of  real  property. 

^  -,  chise  *inay  be  forfeited  either  by  non-user  or  misuser.  It  has  been 
L  -^  held  that  the  non-user  of  a  fair  or  market,  or  courts,  or  such  like 
liberties,  wherein  the  subjects  have  interest  for  their  common  profit  or  com- 
mon justice,  is  cause  of  seizure  of  them ;  but  the  non-user  of  parks  or 
warrens,  or  such  like,  which  are  to  the  profit  or  pleasure  of  the  owner  only, 
is  not  any  cause  of  their  loss  or  forfeiture. (A;) 

As  to  forfeiture  by  misuser  the  stat.  Northampt.,  2  Ed.  3,  c.  15,  provides 
that  if  a  man  holds  his  fair  beyond  the  time  allowed,  he  forfeits  the  fran- 
chise ;(/)  so,  if  he  hold  his  market  at  another  day,(/)  or  holds  his  fair  for 
three  days  when  he  ought  to  hold  it  only  for  two ;(/)  but  if  a. man  take  out- 
rageous toll,  he  does  not  forfeit  the  market,  only  the  toll.(m) 

7.  Listurhance  of  a  Market,  and  the  Remedies. 

691.  The  grantee  or  owner  for  the  time  being  of  the  franchise  of  a 
market  may  have  an  action  on  the  case  against  a  person  who  erects  a  stall 
upon  his  own  ground  for  selling  meat,  though  he  should  not  take  toll  or 
usurp  a  franchise  ;(n)  so,  in  an  early  case  it  had  been  held,  that  a  person 
could  not  prescribe  to  have  a  market  in  his  own  house  against  one  Avho 
had  the  franchise  of  a  market  in  the  same  place,  Prior  of  Dunstable's 
case  ;(o)  and  on  the  authority  of  this  case  it  w^s  held,  in  Mosley  v. 
Walker,(;))  that  by  grant  or  prescription  the  owner  of  such  a  market  may 
prevent  persons,  being  inhabitants,  from  sellii-ig  in  private  houses.  But 
twrenty  years'  uninterrupted  use  gives  a  prima,  facie  right  to  a  fair  or 
market,  and  is  a  sufficient  answer  to  an  indictment  for  obstructing  a  high- 
way ;  so,  if  the  grantee  of  a  market,  under  letters-patent  from  the  Crown, 
suffer  another  to  erect  a  market  in  his  neighbourhood,  and  use  it  for  the 

*f:o  1  ^P^ce  of  upwards  of  twenty  years  without  *interruption,  he  is  by 
L  '  -'  such  use  barred  of  his  action  on  the  case  for  disturbance  of  his 
market."  ((/') 

692.  It  seems  not  to  be  settled,  that  the  grantee  of  a  newly  erected  mar- 
ket can,  by  virtue  of  such  grant  merely,  maintain  an  action  on  the  case,  for 
disturbance  of  a  franchise,  against  a  person  selling  marketable  articles  in  his 
own  shop  within  the  franchise,  but  not  within  the  limits  of  the  market  place, 
on  the  market  day  ;(r)  but  a  claim  by  immemorial  custom  to  exclude  others 
from  selUng  such  commodities  on  the  market  day,  is  valid  in  law  ;(s)  and 
where  a  market  for  meat,  &c.  was  proved  to  have  been  in  existence  in  the 
reign  of  James  I.,  proof  that  the  grantees  of  the  market  had  for  the  last  hun- 
dred years  appointed  market  lookers,  and  that  no  butchers'  shops  had  exist- 
ed out  of  the  market  place  until  1810,  and  that  the  shops  then  set  up  were 

(/■)  The  case  of  Leicester  Forest,  Cro.  Jac.  1 55. 

il)  2  Roll.  Abr.  124.  («)  2  Inst.  221  ;  Palm.  82. 

In)  Mo-^lcy  v.  Chadwick,  7  B.  &  C.  47,  n.  (a.) 
(o)  ]  I  H.  6,  7.  13. 11),  a.  b,  cited  Bro.  Prescriution,  98 ;  8  Co.  127. 
(/))  7  B.  &L  C.  40 ;  S.  C,  9  D.  .t  R.  8G3. 

(v)  Holcroft  V.  Heol,  1  B.  &  P.  400  ;  see  also  Camplicll  v.  Wilson,  3  East,  293. 
(r)  Macclesfield  (Ma^^or,  &c.)  v.  Pcdlcy,  4  B.  &.  Ad.  o97. 

(:)  lb.,  recognizing  Tiie  Gravesend  case,  2  Brownl.  179;  Mosley  v.  Walker,  7  B. 
&  v.  40.> 

»Eng.  Com.  Law  Reps,  xiv.  13. 


FRANC  U  I  S  E  S,  -374 

objected  to  by  the  grantees,  was  held  to  be  sufficient  evidence  of  such 
inimetnonal  right. (^) 

693.  Bat  the  grantee  of  a  market  is  bound  to  provide  reasonable  accomo- 
dation for  those  who  attend  the  market  ;  therefore,  where  part  of  the  space 
granted  for  a  market  was  used  for  other  purposes  than  those  specified  in  the 
grant,  and  the  remaining  part  became  insufficient  for  public  accommodation, 
held,  that  the  lord  of  the  market  could  not  maintain  an  action  against  an 
individual  for  selling  vegetables  in  the  neighbourhood  of  his  market,  and 
thereby  depriving  him  of  toll,  even  at  the  time  when  there  was  room  in  the 
market,  without  showing  that  on  the  day  when  the  sale  took  place  he  gave 
notice  to  the  seller  that  there  Avas  room  within  the  market  ;(^^)  and  it  is  a 
question  for  the  *jury  whether  the  accommodation  be  sufficient  or  not,  ^_„„-| 
and  where  the  jury  decided  that  the  accommodation  was  sufficient,  L  -" 
the  Court  refused  to  disturb  the  verdict. (a:) 

69  i.  As  tolls  are  only  due  by  grant  or  prescription,  and  cannot  be  estab- 
lished by  usage  under  a  recent  charter  or  by  reference  to  neighbouring 
markets, (y)  it  seems  doubtful  whether,  if  no  specific  toll  be  granted  in  let- 
tors-patent,  the  grantee  of  a  market  be  entitled  to  any  toll,  and  whether,  in 
such  a  case,  he  can  support  an  action  for  an  injury  to  his  market. (z) 

As  a  grant  of  a  fair  or  market  may  be  made  either  to  lords  of  manors  or  to 
boroughs  and  other  places, (a)  questions  may  sometimes  arise  as  to  the 
respective  rights  of  these  different  parties  ;  therefore,  where  King  Charles 
II.  by  charter  granted  to  the  corporation  of  Walsall  two  fairs,  to  be  holden 
annually,  and  confirmed  to  them  all  markets  which  had  been  heretofore 
holden,  with  a  reservation  of  the  rights  of  the  lord  of  the  manor,  it  appeared 
that  a  market  had  been  holden  immemorially  in  the  High-street  of  Walsall 
until  a  very  late  period,  when  the  corporation  finding  it  inconvenient, 
removed  it  to  another  and  more  convenient  place  v/ithin  the  borough  ;  and 
also  that  the  corporation  had  exercised  other  rights  of  ownership,  as  by 
taking  down  the  old  market  place  and  erecting  a  new  one,  and  by  ordering 
that  the  market  and  fairs  for  pigs  and  other  cattle  should  henceforth  be  kept 
in  the  new  market  place,  and  no  longer  in  the  High-street ;  it  also  appeared 
that  though  the  lord  of  the  manor  appointed  the  clerk  of  the  market,  j^et  he 
did  not  receive  any  toll  from  the  persons  frequenting  it  ;  on  an  indictment, 
therefore,  of  the  defendant,  by  the  corporation,  for  a  nuisance  in  erecting 
stalls  in  the  High-street  after  the  removal  of  the  market,  the  judge,  upon 
the  trial,  left  it  to  *the  jury  to  say  whether  the  corporation  were  p^coq-i 
owners  of  the  market,  adding  that  if  they  were,  the  right  of  removal  L  J 
was  incident  to  the  grant.  The  jury  having  found  in  the  affirmative,  the 
Court  refused  to  grant  a  new  trial.  (6) 

695.  As  to  the  remedies  in  case  of  a  disturbance  of  a  market  before  the 

(0  Macclesfield  (Mavor,  Sec.)  v.  Pedley,  4  B.  &  Ad.  307.'' 
{u)  Prince  v.  Lewis,  5  11.  &  C.^  363  ;  S.  C,  2  C.  &  P.  G6. 

(x)  Mosley  v.  Walker,  7  B.  &  C.  40A  (y)  Lowden  v.  Ilieron,  Holt,  547. 

(«)  Holcroft  V.  Heel,  1  B.  &  P.  400. 

(a)  Case  of  Dorking  Market,  2  Taunt.  133:  Tewksburv  (BnilifFs,  &c.)  v.  Bricknell, 
Id.'  220.  {!>)  R.  V.  Cotterill,  1  B.  &.  A.  67. 

i-Eng.  Com.  Law  Reps.  xxiv.  87.    <^Id.  xi.  252.      ■^Id.  xiv.  13. 


372 


crabb's  law   of    real   property. 


3  &  4  W.  4,  c.  27,  s.  36,  abolishing  assizes,  (see  Dig.  P.  iii.  tit.  Limita- 
tions,) »  if  a  fair  or  market  were  set  up  to  the  nuisance  of  another,  the  party 
ao-o-rieved  might  have  an  assize  of  nuisance, (c)  but  now  the  remedy  is  an 
action  on  the  case  as  in  other  cases  of  disturbance  ;(</)  and  where  a  party  is 
a  wrongdoer  without  any  claim  of  right,  an  indictment  for  a  nuisance  may 
be  sustained, (e)  see  ante,  §  694. 

It  seems  doubtful  whether  an  information  in  the  nature  of  quo  warranto 
for  a  usurpation  upon  the  Crown,  by  holding  a  fair  or  market,  can  be  grant- 
ed on  the  appUcation  of  a  private  person  ;(/)  but  it  seems  clear,  that  it  will 
not  lie  for  the  bare  encouraging  and  promoting  the  holding  of  a  market,  it 
being  at  most  a  misdemeanor,  and  no  usurpation  of  a  franchise. (/) 

In  some  cases,  equity  will  interfere  to  enforce  the  lord's  right  to 
tolls.(g-) 


[*540] 
§  697. 


*X.  STo  I)c  a  erorjpovation. 


698. 


699. 


700, 
701, 


702, 

703, 
704 

705 

706 

707 

708 
709 
710 


Definition  of  a  Corporation. 
Different  Kinds. 

Sole  Corporation. 
Aggregate  Corporation. 
Lay    and    Ecclesiastical    Corpora- 
tions. 
Civil  Corporations. 
Eleemosynary  Corporations. 

Ecclesiastical  Corporations. 

Created  by  the  Queen. 

One  Corporation  not  to  be  made  by 
another. 

By  Prescription. 

True  Description  of  a  Corporation 
necessary. 

Effect  of  slight  Misdescription. 

Corporation  may  change  the  Name. 

Power  of  Corporation   to  purchase, 
&c. 

Corporation  to  liave  a  Common  Seal. 

Power  to  elect  Members. 

Power  of  Amotion  of  Members. 

Modes  of  proceeding   by  Corpora- 
tions. 
,  Must  act  by  Attorney. 
,  No  acts  without  Deed. 

Except  in  what  Cases. 
,  Acts  of  Corporations  must  be  under 

Seal. 
,  Grants  by  or  to  Corporations. 

Good  or  otherwise. 
,  No  Devise  to  a  Corporation. 

Mortmain  Acts. 
,  Effect  of  a  Grant  to  a  Corporation. 
.  Alienation  by  a  Corporation. 
.  Liabilities  of  Corporations  and  their 
Members. 

Process  against  a  Corporation. 


§  711. 

712. 
713. 


714. 
715. 
716. 
717. 

718. 
719. 

720. 
721, 

700 


723. 
724 

725, 
726 

727 


Wliat  actions  may  or  may  not  be 
brought  against  a  Corporation. 

Modes  of  Proceeding  by  or  against 
a  Corporation. 

Subject  to  Burthens  as  Individuals. 

Members,  when  individually  liable 
or  otherwise. 

In  case  of  Disseisin,' &-c. 

Liability  in  Equity. 

Acts  and  Powers  of  Corporations. 

Concurrence  of  the  Head. 

Summoning  Members. 

What  necessary  in  case  of  Amotion 
ofMembers. 

Proceeding  at  Elections. 

Visitation  of  Corporations    by    the 

Queen. 

Visitation  by  the  Ordinary. 

Visitation  by  the  Founder. 

Form  of  appointing  a  Visiter. 

Visiter  may  deprive  in  some  Cases. 

Power    of   Visiter    defined  by    the 
Statutes. 

Observance  of  the  Statutes. 

Redress  of  Grievances. 

Power  confined  to  Members. 

But  extends  to    engrafted    Fellow- 
ships. 

To  what  Things  the  visitatorial  Pow- 
er does  not  extend. 

Visiter's  Decision  to  be  final,  when. 

Mandamus  does  not  lie,  when. 

But  Prohibition  lies. 

Other  Cases  of  Mandamus,  &.C. 

Remedies  in  other  Cases. 

In  Equity. 

Mode  of  dissolving  Corporations. 

Forfeiture. 


\d)  Mosiey  v.  Chadwick,  7  B.  &  C.  474  a  ;=  and  Mosley  v.  Walker,  see  ante,  §  691,  692. 
(c)  R.  V.  Cottcrill,  1  B.  &  Ad.  67. 

( /)  R.  V.  Marsden,  3  Burr.  1812  ;  S.  C,  Bl.  579.  ,  ,.    , ,   oo 

(g)  Reading  v.  Winkwortli,  5  Price,  473;  Norfolk  (Duke)  v.  Myers,  4  Madd.  83. 

eEng.  Com.  Law  Reps.  xiv.  13. 


FRANCHISES.  373 

*§  696.  The  subject  of  corporations  as  a  franchise  comprehends  r-^rAM 
the  following  points  : —  L  "^     J 

1.  The  nature  of  a  corporation,  and  its  different  kinds. 

2.  How  created. 

3.  Incidents  to  a  corporation. 

4.  How  visited. 

5.  How  dissolved. 

] .   The  Nature  of  a  Corporation,  and  the  different  Kinds. 

697.  A.  corporation  is  a  body  to  take  in  succession,  framed  as  to  that 
capacity  by  policy,  and  therefore  called  by  Littleton  (sect.  413)  a  body 
politic  ;  and  is  called  a  body  corporate,  because  the  persons  are  made  into  a 
body,  and  are  of  capacity  to  take  and  grant,  &c.(/i) 

Of  corporations  some  are  sole  and  some  aggregate  ;  a  sole  corporation 
consists  of  one  person  only,  as  the  queen  ;{i)  so,  a  clergyman,  by  being 
make  a  bishop,  prebendary,  parson,  or  vicar,  is  said  to  be  a  sole  corpora- 
tion. (A;) 

A  corporation  aggregate  is  an  artificial  body  of  men  composed  of  divers 
constituent  members,  and  is  said  to  be  invisible  and  immortal. (/) 

Corporations  are  either  lay  or  ecclesiastical :  lay  corporations  are  either 
civil  or  eleemosynary ;  the  civil  are  erected  for  different  temporal  pur- 
poses,(1)  thus  the  queen  is  a  corporation  to  prevent  in  general  the  possi- 
bilty  of  an  interregnum,  or  vacancy  of  the  throne,  and  to  preserve  the 
possessions  of  the  Crown  entire,  for  immediately  upon  the  demise  of  one 
king,  his  successor  is  in  full  possession  of  the  regal  rights  and  dignity  ;(w) 
so,  the  chamberlain  of  London, (n)  Of  other  lay  corporations  some  are  for 
general  government,  as  those  of  mayor  and  commonalty,  &c. ;  some  for  a 
commercial  purpose,  as  the  Trinity  House  for  regulating  the  navigation  ; 
*so,  for  the  advancement  of  learning,  as  the  universities,  which  last  r^R^n-i 
it  has  been  held  must  be  ranked  among  the  lay  corporations. (o)  L         J 

Of  the  eleemosynary  sort  are  such  as  are  constituted  for  the  perpetual 
distribution  of  the  free  alms  as  directed  by  the  founder;  of  this  kind  are 
all  hospitals  for  the  maintenance  of  the  sick  and  poor  and  impotent,  and  all 

(A)  1  Inst.  250,  a.  (i)  10  Co.  29  b;  1  Roll.  Abr.  512. 

ih)  Comp.  Incumb.  372.  (i)  1  Inst.  130;  2  Bul.st.  2.33. 

(?«)  1  Comm.  470.  (?;)  Fulwood's  case,  4  Co.  65. 

(0)  3  Burr.  1656  ;  1  Bl.  547. 

(1)  The  distinction  between  public  and  private  corporations  is  of  greater  consequence 
here  in  consequence  of  the  provision  of  the  Constitution  of  the  United  States  forbidding-  a 
state  to  impair  the  obligation  of  contracts,  which  has  been  held  in  Dartmouth  v.  VV^ood- 

■  ward,  4  Wheat.  518,  to  extend  to  charters  granted  by  the  king  before  the  revolution.  It  was 
said  in  that  case  by  Marshall,  C.  J.  "  If  the  act  of  incorporation  be  a  grant  of  political 
power,  if  it  create  a  civil  institution  to  be  employed  in  the  administration  of  the  govern- 
ment, or  if  the  funds  of  the  college  be  public  property,  or  if  the  state  of  New  Hampshire 
be  alone  interested  in  its  transactions,  the  subject  is  one  on  which  the  legislature  may  act 
according  to  its  judgment  unrestrained  by  any  limitation  of  its  power  imposed  by  the 
Constitution  of  the  United  States."  But  neither  the  act  of  incorporation,  nor  the  public 
character  of  the  object,  education,  took  from  the  corporation  its  character  of  a  private 
eleemosynary  instilulion.  The  same  distinction  is  stntcd  by  I\Ir.  .Tustice  Story  in  the 
same  case.  See  also  Bonaparte  v.  Camden,  1  Bald.  222-3.  Tlic  People  v.  Morris,  13 
Wend.  323.   Marietta  v.  Fearing,  4  Ohio  Rep.  432.     Terrett  v.  Taylor,  9  Craucli,  43. 


3T4  crabb's   law  of  real   property. 

colleges  both  in  the  universities  and  out  of  them  ;(1)  and  these  eleemosy- 
nary corporations  are,  strictly  speaking,  lay,  even  although  composed  of 
ecclesiastical  persons,  and  although  in  some  respects  they  partake  of  the 
nature,  privileges,  and  restrictions  of  ecclesiastical  bodies  ;(;;)  they  are,  in 
fact,  lay  corporations,  because  they  are  not  subject  to  the  jurisdiction  of  ihe 
ecclesiastical  courts,  or  to  the  visitation  of  the  ordinary  or  diocesan  in  their 
spiritual  character. (g) 

Ecclesiastical  corporations  are  where  the  members  that  compose  them  are 
entirely  spiritual  persons,  such  as  bishops,  certain  deans  and  prebendaries, 
all  archdeacons,  parsons,  and  vicars,  which,  as  they  hold  their  possessions 
singly,  are  sole  corporations ;  and  deans  and  chapters,  Avhich  are  corpora- 
tions aggregate  ;  and  if  a  person  who  is  a  corporation  sole,  makes  with 
others  a  chapter,  as  by  being  an  incumbent  of  the  same  preferment,  he 
becomes  both  a  corporation  sole  and  a  member  of  a  corporation  aggregate. (r) 

2.  Hoiv  created. 

698.  The  queen  by  virtue  of  her  prerogative  is  the  only  person  that  can 
erect  either  an  ecclesiastical  or  lay  corporation, (s)  for  the  pope  could  not 
have  founded  or  incorporated  a  college,  &c.,  here,  but  it  ought  to  have  been 
done  by  the  king  himself;(^)  and  although  one  corporation  may  be  made 
r*^4.^"l  °"''  °^  another,  yet  it  must  be  by  the  queen's  charter,(2)  therefore, 
L  -'  *where  the  mayor  and  commonalty  of  London  prescribed  to  make 
another  corporation  in  the  city,  though  their  customs  are  confirmed,  yet  it 
was  held  not  to  be  good  without  the  king's  charter. (?f) 

In  the  case  of  Cuddon  v.  Eastwick,(a?)  it  is  said,  that  a  corporation  may 
make  a  fraternity ;  but  in  other  reports  of  that  case  the  point  is  not 
noticed,(y)  and  it  is  denied  to  be  law  in  R.  v.  The  Coopers'  Company, 
Newcastle, (j)  where  it  is  said,  that  this  can  be  effected  only  by  the  legisla- 
ture or  the  Crown  :  so,  a  patent  procured  by  some  few  persons  only  shall 
not  bind  the  rest, (3)  nor  can  the  inhabitants  of  a  town  be  incorporated  with- 
out the  assent  of  the  major  part  of  them;(a)(4)  so,  as  it  is  the  queen's 

(p)  1  Ld.  Raym.  6.  (q)  1  Comm.  471. 

(r)  Compl.  Incumb.  372.  (s)  1  Comm.  472. 

{t)  4  Co.  107  b  ;  Cawdry's  case,  5  Co.  26, 

(m)  10  Co.  31 ;  Moor,  584 ;  1  Sid.  2<)1.  (.r)  1  Sdk.  109. 

(y)  6  IMLod.  123  ;  Holt,  433.  (2)  7  T.  R.  548.  {a)  2  Brownl.  100. 


(1)  Dartmouth  College  v.  Woodward,  4  Wheat.  518. 

(2)  But  it  will  not  be  a  successor.    Dilling-ham  v.  Snow,  5  Mass.  554. 

(3)  But  tlie  persons  named  constitute  a  corporation  tliou<rh  the  others  do  not  join.  Day 
V.  Stetson,  8  Greenl.  371. 

(4)  These  corporations  being  entirely  within  the  sovereign  power,  ante  54],  n.  1,  Brad- 
ford V.  Carey,  5  Greenl.  312,  may  be  created  and  modified  at  discretion,  but  all  persons 
within  the  limits  of  a  public  corporation  arc  subject  to  such  bye-lavvs  as  it  may  lawfully 
make.  Marietta  v.  Fearing,  4  Ham.  431.  And  residing  there  become  ipso  facto  mem- 
bers of  the  corporation.  Lord  v.  (Chamberlain,  2  Greenl.  G'J.  Legal  settlement  is  gained 
by  any  resident  within  the  limits  of  a  jiev.ly  created  or  divided  corporation.  West- 
port  V.  Dartmouth,  10  Mass.  342  ;  and  public  property  of  a  former  corporation  divided  info 
two  l)odies  is  subject  to  the  same  rule  and  belongs  to  the  body  witliin  whose  limits  it  may 
be  situated.     Hempstead  v.  Hempstead,  2  Vvend.  109. 

In  the  case  of  private  corporations,  no  one  can  be  made  a  member  without  his  assent. 
Gray  v.  Po^rtland  Bink,  3  Mass.  387.  Ellis  v.  Marshall,  2  id.  279.  Commonwealth  v. 
Jarrett,  7  S.  &  R.  460.     Beaty  v.  Knowlcr,  4  Pet.  167.     So  the  corporation  cannot  be 


FRANCHISES.  375 

charter  that  creates  corporations,  no  such  charter  may  mould  and  frame  them 
as  it  shall  think  fit. (6) 

Some  corporations  may  be  by  prescription,  yet  such  prescription  always 
supposes  an  original  grant  from  the  Crown,  which  being  lost  or  worn  out 
by  time,  yet  having  run  into  a  prescription,  still  continues  to  unite 
them.(c) 

It  is  now  settled  that  a  corporation  can  only  be  created  by  the  CroAvn,  or 
by  Act  of  Parliament  ;(f/)  yet  the  queen  may  give  power  to  a  common 
person  to  name  the  corporation,  and  the  persons  it  is  to .  consist  of;  but 
when  he  hath  so  done,  this  corporation  does  not  take  its  essence  from  the 
common  person,  but  from  the  queen  ;(e)  so,  by  the  39  El.  c.  5,  every 
person  seised  in  fee  simple,  may,  by  deed  enrolled  in  Chancery,  erect  an 
hospital  or  house  of  correction  which  shall  be  incorporated,  and  have  per- 
petual succession,  and  shall  be  visited  by  such  persons  as  shall  be  nominated 
by  the  founders  thereof,  &c.(y) 

*In  creating  a  corporation,  it  does  not  appear  that  the  law  requires  r-^^-jA-i 
any  set  form  of  words  ;  any  words  equivalent  will  suffice,  as  "CO??-  L  J 
stituimus  the  men  of  such  a  town  a  corporation,"  viz.  a  mayor,  &.c.  ;(g*)(l) 
and  of  ancient  time,  the  inhabitants  of  a  town  were  incorporated  when  the 
king  granted  to  them  to  have  guildham  mercatoriam.{Ji^ 

3.  Naming  of  Corporations. 

699.  The  names  of  corporations  are  given  of  necessity,  for  the  name  is, 
as  it  were,  the  very  being  of  their  constitution,  or,  which  is  the  same  thing, 
the  knot  of  their  combination,  without  which  they  cannot  perform  any  cor 
porate  acts,(j)  for  the  name  of  a  corporation  is  as  the  name  of  baptism  ;(^) 
but,  though  a  corporation  must  have  a  name,  yet  that  must  be  understood  to 
be  expressed  in  the  patent,  or  implied  in  the  nature  of  the  thing,(/)  as  if  the 
queen  should  incorporate  the  inhabitants  of  Dale,  with  power  to  choose  a 
mayor  annually,  though  no  name  be  given,  yet  it  is  a  good  corporation  by 
the  name  of  the  mayor  and  commonalty,  and  by  that  name  it  shall  sue  and 

{h)  10  Co.  30.  (0  45  E.  3.  2,  3;  1  Inst.  130;  9  Bulst.233. 

{(1)  Keilvv.  138;  R.  v.  The  Coopers'  Comp.,  Newcastle,  7  T.  R.  54S. 
(p)  Case  of  Sutton's  Hospital,  10  Co.  33. 

( /)  2  Inst.  720 ;  see  also  as  to  the  statutory  provisions  respecting  corporations,  Dig. 
P.  i".  ii.  (g)  2  Roll.  Abr.  1J)7. 

(/()  Reg-.  219  ;  10  Co.  30.  (/)  5  Ed.  4.  201. 

(/.-)  2  Inst.  666  ;  see  also  Perk.  8 ;  Hob.  32 ;  Leon.  307  ;  0\v.  35. 

(/)  1  Salk.  191,  pi.  3. 

divided  without  their  assent.  Indiana  v.  Phillips,  2  Penna.  186.  P.ut  in  all  tiiosc  charters 
created  for  public  purposes  their  rights  and  duties  may  be  modified  with  their  assent.  9 
Cranch,  52.  Gray  v.  Monongaheh,  2  W.  &,  S.  161.  Irvine  v.  The  Turnpike,  2  Penna. 
463.  And  this  assent  must  be  expressed  by  a  majority  of  the  different  classes  comjvjsing 
tlie  corporation.  Case  of  St.  Mary's  Church,  7  S."&  R.  528.  And  may  be  shown  by  acts 
of  the  party.  laneoln  v.  Richardson,  1  Grcenl.  81.  Beatty  v.  Knowlcv,  4  Pet.  168.  Trott 
V.  Warren,  2  Fairf.  227.     Russell  v.  M'Lcllan,  14  Pick.  63. 

(1)  Danton  v.  Jackson,  2  J.  C.  R.  325.  And  as  there  may  be  corporations  for  particular 
purposes  or  to  a  certain  degree,  or  quasi  corporations,  so  under  grants  by  the  sovereign  power 
of  such  corporate  powers,  or  where  incidental  to  other  grants,  as  of  land,  the  grantees  will 
be  considered  corporations  so  as  to  entitle  them  to  sue  as  such.  North  Hempstead  v. 
Hempstead,  2  Wend.  134.  Tiie  Inliabitants  v.  Wood,  13  Mass.  193.  Stcbbins  v.  Jen- 
nings,  10  Pick.  188.    The  Society  v.  Pawlet,  4  Pet.  480. 


376  crabb's  law    of   real   troperty. 

be  sued,  or  do  all  legal  acts  ;(Z)  and  although  in  legal  proceedings,  any 
variation  from  the  true  name  of  the  corporation  has  been  held  fatal,(;n)  par- 
ticularly where  such  variation  prejudicially  aflected  the  rights  of  parlies, 
yet,  where  by  statute  a  special  authority  was  delegated  to  a  corporation, 
afTecting  the  property  of  individuals,  held,  that  the  mayor,  aldermen,  and 
commons,  in  common  council  assembled,  were  not  sufficiently  described  by 
the  »  mayor  and  commonalty,  and  citizens  ;"(??)  but  a  very  minute  varia- 
tion therein  is  not  material,(o)(l)  particularly  where  the  strict  construction 
would  work  an  injustice  ;  therefore,  where  a  corporation,  describing  them- 
selves as  the  Avarden,  &c.,  *but  omitting  the  name  of  their  founder, 
[*545]  ^y  ^QQ^^  under  their  common  seal,  and  under  the  authority  of  an 
Act  of  Parliament,  sold  part  of  their  estate,  it  was  held,  that  the  misdescrip- 
tion of  the  corporation,  in  omitting  the  name  of  their  founder  was  imma- 
terial, and  that  the  grant  made  by  the  corporation  was  not  void  by  reason  of 
such  misdescription. (/)) 

700.  A  corporation  may  change  its  name,  as  corporations  frequently  do 
in  new  charters,  and  will  still  retain  its  powers,  rights,  and  privileges,(5') 
and  the  corporation  shall  retain  under  its  new  name  the  possessions  which 
it  had  before,(r)  and  shall  recover  by  its  new  name  a  debt  owing  to  it 
before, (s)  notwithstanding  there  have  been  judgment  of  ouster  against  indi- 
vidual members  of  the  corporation,  for  the  corporation  is  not  thereby  dis- 
solved.(/)  On  the  other  hand  it  shall  be  subject  to  bonds,  annuities,  &c., 
as  before  ;(«)  but  a  distinction  has  been  taken  where  the  new  charter  alters 
the  constitution  of  the  corporation,  and  new  models  it,  there  they  shall  lose 
their  old  names ;  but  if  the  constitution  remains  as  to  all  its  integral  parts 
the  same,  though  the  new  charter  gives  them  a  new  name,  the  old  one 
remains,  as  if  a  mayor  be  added,  or  a  mayor  and  master  be  made  mayor  and 
alderman,  or  an  abbot  and  convent  a  dean  and  chapter,  there  they  lose  their 
old  names,  because  new  integral  parts  of  the  corporation  are  added  ;  there- 
fore, where  an  action  of  debt  was  brought  against  a  corporation  under  its  old 
name,  the  plaintiffs  were  nonsuited  ;(x)  but  a  corporation  may  have  two 
names,  one  by  prescription  and  one  by  grant  ;(.r)  so,  a  corporation  may  be 

(/)  1  Salk.  191,  pi.  3. 

(m)  Turvill  v.  Aynsworth,  2  Stra.  787;  S.  C,  2  Ld.  Ra)'m.  1515. 

(n)  R.  V.  Croke,  (^^vvp.  26.  (o)  10  Co.  125 ;  ]  1  Co.  21 ;  Gouldsb.  122. 

(p)  Croydon  Hospital  (Warden,  &c.,)  v.  Farlcv,  2  Marsh.  174. 

iq)  Dy.  279  ;  Bro.  Corporation,  38 ;  Luttrcl's  case,  4  Co.  87  b ;  Moor,  581 ;  1  Vent.  35o. 

(r)  1  Roll.  Abr.  512,  pi.  3. 

(s)  Moor,  sup.;  Scarborough  (Mayor,  &c.)  v.  Butler,  3  Lev.  238. 

(0  Colchester  (Mayor)  v.  Seaber,  3  Burr.  1866. 

Ill)  Bro.  Corporation,  3  ;  Moor,  sup. ;  Colchester  (Mayor)  v.  Seaber,  sup. 

(x)  Knio-htv.  Wells  (Mayor,  &c.),  1  Lord  Raym.  80;  S.  C,  1  Lutw.  508. 


(1)  A  distinction  is  taken  between  suits  by  or  against  a  corporation  in  which  the  name 
must  be  strictly  set  out  and  grants  and  contracts  by  or  to  them,  in  which  latter  case  an 
averment  and  proof  of  identity  is  sufficient.  Road  Company  v.  Creegar,  5  Harr.  &.  Johns. 
124.  And  it  is  said  this  laxity  was  allowed  when  the  strict  rule  requiring  a  corporation 
to  speak  under  its  corporate  seal  alone,  was  modified.  Berks  v.  Myers,  6  S.  &  R.  17.  See 
also  :\linot  v.  Curtis,  7  Mass.  444.  IMcdway  v.  Adams,  10  id.  367,  Inhabitants  v.  String, 
5  Halst.  323.  Clarke  v.  Potter,  1  Barr,  162.  First  Parish  v.  Cole,  3  Pick.  236.  Burn- 
ham  V.  Baule,  5  N.  H.  449.  Soubcgan  v.  M'Conil;e,  7  id.  310.  Pendleton  v.  The  Bank. 
1  Monr.  176. 


FRANCHISES.  377 

♦incorporated  b}'  one  name,  and  power  may  be  given  by  them  to  ^..—^^.-1 
sue  and  purchase  lands  by  another  name  ;{i/)  so,  where  a  corpora-  L  -^ 
tion  declaring  in  covenant  by  their  modern  name,  stated  that  the  citizens, 
&c.  were  from  time  immemorial  incorporated  by  divers  names  of  incorpo- 
ration, and  at  the  time  of  making  the  indenture  by  A.  B.,  which  they 
declared  on,  were  known  by  a  certain  other  name,  by  which  name  A.  B. 
granted  them  a  certain  water-course,  and  covenanted  for  quiet  enjoyment, 
held,  that  the  deed  granting  the  water-course  to  them  by  such  name  was 
evidence  as  against  the  defendants  who  claimed  under  the  grantor,  that  the 
corporation  was  known  by  that  name  at  the  time,  upon  an  issue  taken  upon 
that  fact.(z) 

Where  a  corporation  takes  its  rise  from  the  queen's  charter,  the  queen, 
by  granting  and  the  corporation  bj^  accepting  another  charter,  may  alter  the 
name,  because  it  is  done  with  the  consent  of  all  the  parties,  who  are  compe- 
tent to  consent  to  the  alteration  ;(a)(l)  but  the  constitution  of  a  corporation 
as  settled  by  Act  of  Parliament,  cannot  be  varied  by  the  acceptance  of  any 
charter  inconsistent  with  it.(«) 

4.  Incidents  to  a  Corporation. 

701.  When  a  corporation  is  duly  created  all  incidents  as  to  purchase 
and  grant, (2)  to  sue  and  be  sued,  &c.,  are  tacitly  annexed  to  it,  and  although 
no  power  to  make  laws,  statutes,  or  ordinances  is  given  by  a  special  clause 
to  a  corporation,  it  is  included  by  law  in  the  very  act  of  incorporation,  but 
their  by-laws  ought  al\va}'s  to  be  subject  to  the  laws  of  the  realm,  as  subor- 
dinate thereto.  (6J  (3) 

Corporations  have  also  as  incident  to  them  a  common  seal,  for  a  corpora- 
tion being  an  invisible  body  cannot  manifest  *its  intention  Ijy  any  ^  .  -, 
personal  act  or  oral  discourse,  it  therefore  acts  and  speaks  only  by  L  -^ 
its  common  seal.(c) 

Aggregate  corporations  have  also  a  power  necessarily  implied  of  electing 
members  in  the  room  of  such  as  go  off;(rf)  and  a  prescriptive  right  in  per- 
sons of  a  definite  description  to  be  admitted  burgesses  of  Nottingham  was 
held  by  the  court  not  to  exclude  the  incidental  power  arising  by  implication 
of  law  to  the  corporation  at  large,  to  secure  their  perpetual  succession  by 
voluntary  elections  of  burgesses  ad  libitiim.(e\ 

Formerly  it  was  held  that  a  power  of  removing  its  members  was  not  inci- 
dent to  a  corporation,  and  that  no  freeman  of  any  corporation  could  be  dis- 

(y)  College  of  Physicians  and  Butler,  W.  Jo.  261 ;  S.C.,  Litt.  Rep.  168;  Cro.  Car.  256  ; 
see  also  College  of  Physicians  v.  Salmon,  9  Salk.  452;  S.  C,  1  Ld.  Rayni.  630. 

(2)  Carhsle  (Mayor,  &c.)  v.  Blamire,  8  East,  487. 

(a)  R.  V.  Miller,  "6  T.R.  268. 

(/>)Case  of  Sutton's  Hospital,  10  Co.  30;  Norris  v.  Staps,  Hob.  211 ;  The  City  of  Lon- 
don  V.  Vanacre,  5  Mod.  438.  (r)  Dav.  44,  48. 

(.'/)  1  Roll.  Abr.  514;  1  Coram.  475.  (e)  R.  v.  Bird,  13  East,  367. 

(1)  Ante  543,  n. 

(2)  Bank  of  the  U.  S.  v.  Dandridgc,  12  Wheat.  64.  Reynolds  v.  Stark  Co.  5  Ham.  205. 
First  Parish  v.  Sutton,  3  Pick.  239.  Rumford  v.  Wood,  13"Mass.  198.  3I'Cartce  v.  Orphan 
Asvlum,  9  Cow.  508.  The  right  to  hold  depends  on  the  mortmain  acts.  Leazure  v.  Hillc- 
gas,  7  S.  &.  R.  320. 

(3)  Marietta  v.  Fearing,  4  Ham.  431, 


378  crabb's  law   of   real  property. 

franchised  by  the  corporation,  unless  they  had  authority  by  the  express 
words  of  the  grant,  or  by  prescription, (/)  but  in  Teddersley's  case(g-)  it 
was  held,  that  reasonable  cause  ought  to  be  shown,  and  in  Lord  Bruce's 
case(/i)  it  is  said,  that  in  modern  times  the  opinion  has  been,  that  a  power 
of  amotion  is  incident  to  a  corporation, (^)(l) 

Corporations  have  also  many  of  the  franchises  already  mentioned  but 
these  must  be  mentioned  in  the  charter  and  granted  by  express  words  ;(A:} 
and  they  may  claim  by  prescription  as  natural  persons  ;(/)  but  the  corpora- 
tion of  a  town  cannot  prescribe  for  the  freeholders  of  the  town.(?n) 

5.  How  a  Corporation  differs  from  natural  Persans. 

702.  The  points  of  difference  between  corporations  and  natural  persons, 
relate  to — 

1.  Modes  of  proceeding  by  corporations. 
r*Pi  ial     *^*   Grants  made  by  or  to  corporations. 
'-         -'       3.  How  corporations  may  sue  or  be  sued. 

4.  Liabilities  of  corporations. 

5.  Acts  and  powers  of  corporations. 

703.  A  corporation  aggregate  can  do  nothing  but  by  attorney  ;''m^  it 
ought  to  appear  by  attorney,  for  if  all  appear  in  person,  it  is  not  suffi- 
cient ;'n)  so  it  ought  to  acknowledge  a  deed  by  attorney  ;(o)  and  any  natu- 
ral person  may  be  an  attorney  for  a  corporation,  though  he  be  a  member  of 
the  same  corporation  ;(;))  so,  if  a  corporation  make  a  lease,  it  must  after- 
wards make  an  attorney  to  enter  and  deliver  the  lease  ;(«7)  so,  to  avoid  a 
lease  for  non-payment  of  rent,  it  ought  to  make  an  attorney  to  enter  dc 
novo;[r)  but  a  dean  and  chapter,  in  their  chapter-house,  acknowledged  a 
deed  of  grant  of  their  lands  to  the  king  without  making  an  attorney,  and  it 
was  held,  that  it  might  be  well  done  ;(s)  so,  to  put  their  common  seal  to  a 
deed  without  attorney,  (s) 

704.  So,  aggregate  corporations,  consisting  of  a  constant  succession,  can 
regularly  do  no  act  without  writing,  therefore  gifts  to  and  by  them  must  be 
by  deed;(f)  so,  a  corporation  aggregate  cannot,  without  deed,  command 
their  baiUff  to  enter  into  certain  lands  of  their  lessee  for  years,  for  a  condi- 
tion broken  ;(m)  nor  to  enter  for  a  forfeiture,  nor  to  enter  into  lands  pur- 

(/)  Bag^'g  case,  11  Co.  99  a;  Yates's  case,  Sty.  477;  R.  v.  Coventry  (Mayor,  &c.^, 
1  Ld.  Raj'iii.  392  ;  R.  v.  Doncaster  (Miiyor,  &c.)  2  Ld.  Rayra.  1566. 
(g)  1  Sid.  14.  {h)  2  Str.  819. 

(i)  See  also  R.  v.  Richardson,  1  Burr.  517. 

(fc)  39  Ed.  3.  35 ;  19  H.  6.  52 ;  14  H.  8.  5  ;  Sheriff  of  Canterbury,  1  Keb.  840. 
{I)  1  Ld.  Raym.  113.  (m)  2  Keb.  2.  (m)  1  Inst.  66,  b. 

(n)  Bro.  Corporation,  28.  (o)  1  Leon.  184;  Moor,  591. 

(p)  Bro.  Corporation,  4.  (/j)  1  Ventr.  257.  (r)  Anon.,  Skinn.  413. 

(s)  :\roor,  676.  (/)  1  Inst.  94.  b. ;  6  Co.  38 ;  Cro.  Car.  170  ;  2  Saund.  305. 

(u)  Dumper  v.  Syms,  Cro.  El.  815. 

(1)  Commonwealth  v.  St.  Patrick's  Society,  2  Binn.  448.  Id.  v.  Guardians  of  the 
Poor,  6  S.  &  R.  469. 


FRANCHISES.  379 

chased  ;(.r)  so,  not  to  make  livery  of  seisin  ;(?/)  so,  not  to  accept  an  assignee 
of  a  lease  as  tenant. (z)(l) 

So,  if  a  lease  for  years  be  made  to  a  corporation  aggregate,  they  cannot 
make  an  actual  surrender  without  deed  ;(o)  *but  if  they  accept  a  r-^f-jq-^ 
new  lease  thereof,  this  is  a  surrender  of  their  first  lease  in  law.(6)      L         -* 

But  a  corporation  may  employ  one  in  ordinary  services  without  deed,  as 
a  butler,  cook,  &c.,  but  not  to  appear  for  them  in  any  thing  which  concerns 
their  interest  or  title  ;(c)  so,  to  make  a  distress,  for  this  does  not  vest  or 
divest  any  interest  ;(f/)  so,  a  man  may  avow  taking  cattle  damage  feasant, 
as  bailiff  to  a  corporation,  Avithout  leaving  a  precept  in  writing ;(e)  so,  a 
verbal  notice  to  quit,  given  by  the  steward  of  a  corporation,  will  be  sutfi- 
cient ;(/)  so,  where  the  churchwardens  of  S.  were  incorporated,  and  the 
king  leased  to  them  for  twenty  years,  and,  in  consideration  of  a  surrender 
thereof,  leased  to  them  for  fifty  years,  held,  that  they  might  with  their  own 
hands,  and  without  writing,  deliver  the  first  letters-patent  into  Chancery  to 
be  cancelled. (§•) 

705.  Regularly,  as  a  corporation  can  manifest  its  intention  only  by  the 
help  of  a  common  seal,  all  its  acts  ought  to  be  under  seal ;  therefore,  where 
a  corporation,  by  a  verbal  agreement  with  a  pauper,  leased  to  him  the  tolls 
of  a  market  for  above  10/.  a  year,  it  was  held  that  he  could  not  gain  a  set- 
tlement thereby,  as  no  interest  could  pass  from  a  corporation  but  under  the 
common  seal  ;(/i^  but  in  equity  it  has  been  held  not  necessary  that  every 
such  act  should  be  under  seal  ;(2)  so,  though  the  affixing  of  the  common 
seal  to  the  deed  of  conveyance  of  a  corporation  be  sufficient  to  pass  the 
estate  without  a  formal  delivery,  if  done  with  that  intent,  3^et  it  will  have 
no  such  effect  if  the  order  for  affixing  the  seal  be  accompanied  with  a  direc- 

(x)  Bro.  Corporation,  50 ;  1  Leon.  30;  Predyman  v.  Wcdry,  Cro.  Jac.  110. 

(y)  Throckmorton  v.  Tracer,  Plorv.  149. 

(z)  Dean  and  Chapter  of  VVindsor  v.  Gover,  2  Saund.  305;  S.  C.  Anon.,  1  Vent.  96 ; 
S.  C.  nom.  Windsor  (Dean,  «S;:c.)  v.  Gower;  T.  Raym.  194. 

(a)  10  Co.  63.  {b)lGCo.G8. 

(c)  1  Vent.  47  ;  1  ^lod.  18.  (</)  Anon.  1  Salk.  191. 

(0  Manbv  v.  Long,  3  Lev.  107.  ( /")  Roe  v.  Pierce,  2  Campb.  96. 

C?)  ]  0  Co.  68.  (h)  R.  V.  Chipping-  Norton  (Inhabs.)  5  East,  239. 

(i)  Att.-Gen.  v.  Davy,  2  Atk.  212 ;  Ait.-Gen.  v.Scolt,  1  Ves.  413 ;  and  3Iaswell  v.  Dul- 
wich  College,  Fonb.  Treat.  Eq.  306;  but  see  Taylor  v.  Diilwich  College,  1  P.  Wms.  655. 

(1)  Parol  agreement  to  rescind  a  policy  of  insurance  not  sufficient,  as  the  charter 
directs  the  mode  of  evidencing  the  contract ;  and  this  rather  shows  the  terms  en  whicli 
the  contract  could  be  made ;  Head  v.  Tlie  Providence  Ins.  Co.  2  Cranch,  127.  But  now 
a  corporation  may  appoint  an  agent  even  without  writing ;  L^nion  Bank  v.  Ridgley,  1 
Harr.  &.  Gill,  420 ;  or  his  acts  may  be  presumed  autljorized  from  similar  ones  having 
been  recognized,  Life  Ins.  Co.  v.  The  Mechanic  Ins.  Co.  7  Wend.  32.  So  a  vote 
of  the  corporators  of  a  town  held  sufncicnt  to  pass  the  title.  Inhabitants  v.  Wood, 
13  Mass.  199. 

The  old  rule  is  inapplicable  to  acts  and  votes  passed  at  corporate  meetings ;  and  the  cor- 
poration may  be  bound  by  a  promise  express  or  implied  resulting  from  tlie  acts  of  its  agents, 
even  though  not  appointed  under  the  corporate  seal  but  by  a  corporate  vote.  B.  U.  S.  v.  Dan- 
dridge,  12  Wheat.  64;  and  see  Bank  of  Columbia  v.  Patterson,  7  Cranch,  299,  where  the 
subject  is  fully  considered.  3Iott  v.  Hicks,  1  Cow.  513;  Fleckner  v.  Bank  of  U.  S.,  8 
Wheat.  338 ;  Danforth  v.  Schoharie  Turnpike  Co.  12  Johns.  227  ;  Canal  Bridge  v.  Gordon, 
1  Pick.  297;  Abbott  v.  Herman,  7  Greenl.  118;  Kennedy  v.  The  Insurance  Co.,  3  Harr. 
&  Johns.^70 ;  Trustees  v.  Mulford,  3  Kalst  152  ;  Chestnut  v.  Rutter,  4  S.  &  R.  16  The 
Banks  v.  Poiteux,  3  Rand.  136  :  Buncombe  v.  M'Carson,  1  Dev.  &  Bat.  306. 


380  crabb's  law   of   real  property. 

tion  to  retain  the  conveyance  in  his  hands,  until  accounts  were   adjusted 
with  the  ^purchaser  ;(j)  so,  in  ejectment,  the  plaintiff  declared  upon 

L  *''^  J  a  demise,  made  to  him  by  the  aldermen  and  burgesses  of  , 

without  selling  forth  that  it  was  by  deed,  or  under  the  seal  of  the  corpora- 
tion, and  on  a  writ  of  error  this  was  holden  well,  for  this  being  a  fictitious 
action  to  try  the  title,  the  demise  need  not  now  be  set  out  to  have  been  by 
deed  •,{k)  so,  if  a  mandamus  be  directed  to  the  Mayor,  &c.  of  T.,  the  return 
may  be  made  in  the  name  of  the  corporation  without  the  common  seal  or 
the  hand  of  the  mayor  set  to  it,  for  though  a  corporation  cannot  do  an  act 
in  pais  without  their  common  seal,  yet  they  may  do  an  act  upon  record,  by 
which  they  are  estopped  to  say  it  is  not  their  act ;(/)  but  the  seal  of  a  corpo- 
ration, put  to  a  deed  by  a  person  who  is  not  mayor,  does  not  make  it  the 
deed  of  the  corporation. (m) 

706.  Although  it  is  incident  to  every  corporation  to  have  a  capacity  to 
purchase  lands  for  themselves  and  successors, (»)  yet  this  rule  admits  of 
several  exceptions  and  qualifications.  A  dean  without  the  chapter,  a  mayor 
without  his  commonaliy,  the  master  of  a  college  or  hospital  withovit  his  fel- 
lows, cannot  purchase  or  make  any  contract  that  will  bind  the  corpora- 
tion ;(o)  so,  e  converso,  a  bond  or  contract  entered  into  by  the  body  in  the 
absence  of  the  head,  will  not  bind ;  and  upon  this  principle,  if  a  bond  be 
extorted  from  a  mayor  and  commonalty  by  the  imprisonment  of  the  mayor, 
the  corporation  may  plead  that  imprisonment  in  avoidance  of  the  bond,  for, 
during  the  imprisonment,  the  corporation  may  be  considered  without  a 
head;(;))  so,  a  devise  to  a  college  by  the  master  is  void,  for  it  has  not  a 
head  when  the  devise  takes  eflfect ;((/)  sed  secus,  if  there  be  a  head  when 
the  grant  takes  efTect,  as,  a  lease  to  A.  for  life,  remainder  to  a  mayor  and 

^  commonalty,  made  in  a  vacation,  *shall  be  a  good  remainder  if  there 

L  "^  -I  be  a  mayor  when  A.  dies  ;(r)  so,  a  grant  of  hberties  or  franchises 
in  the  time  of  vacation,  as  a  grant  to  a  commonalty  to  be  incorporated  and 
choose  a  mayor  ;(s)  so,  payment  of  rent  may  be  made  to  a  chapter  in 
vacation.  (/) 

707.  Corporations  were  excepted  out  of  the  Statute  of  Wills,  34  H.  8,  c. 
5,  so  that  no  devise  of  lands  to  a  corporation  was  good  except  for  charitable 
uses,  under  the  43  El.  c.  4 ;  and  although  that  act  is  repealed,  and  this 
clause  is  not  re-enacted  by  the  last  Will  Act,  7  W.  4  &  1  V.  c.  20,  j'-et  the 
9  G.  2,  c.  36,  (see  Dig.  P.  iii.  tit.  Mortmain,)  has  imposed  many  restrictions 
on  bequests  and  devises  to  corporations,  as  well  as  others  for  charitable  pur- 
poses ;  and  as  to  gifts  infer  vivos,  several  statutes  from  Magna  Charta,  9 
H.  3,  0.  36,  to  9  G.  2,  c.  36,  known  by  the  name  of  Mortmain  Acts,  (see 
Dig.  sup.)  have  abridged  the  power  of  purchasing  by  corporations,  so  that 
now  a  corporation,  whether  ecclesiastical  or  lay,  must  have  a  license  from 
the  Crown  before  they  can  exercise  the  privilege  of  purchasing,  which  is 
otherwise  incident  to  them  at  common  law.     By  some  statutes,  however, 

ij)  Derby  Canal  v.  Wilmot,  9  East,  360.  (k)  Patrick  v.  Balls,  Carth.  390. 

(i)  Salk.  192 ;  see  Rkinn.  Id4.  (w)  12  Mod.  423.  (n)  10  Co.  30. 

(0)  21  E.  4,  12 ;  Moor,  51.         (p)  21  E.  4,  12,  recognised  in  R.  v.  Carter,  Cowp.  224. 
iq,  President  of  C.  C.  College  case,  4  Leon.  223.  (r)  1  Inst.  264  a. 

(«)  10  Co.  27.  "  (0  Moor,  52. 


FRANCHISES.  381 

corporations  are  enabled  to  take  lands,  &c.  given  to  them  for  particular  pur- 
poses, as  by  the  43  G.  3,  c.  107,  the  governors  of  Q.ueen  Anne's  bounty 
may,  notwithstanding  the  Statutes  of  Mortmain,  lake  lands,  &c.  bequeathed 
to  them,  and  by  the  45  G.  3,  c.  34,  personal  property  may  be  given  to  this 
charity  without  deed.  So,  by  the  43  G.  3,  c.  108,  and  other  acts  for  the 
repairing  and  building  of  churches,  (see  Dig.  P.  ii.  lit.  Church,)  it  is  pro- 
vided that  lands  not  exceeding  five  acres  may  be  given  for  the  purpose  of 
providing  houses  of  residence  for  the  minister,  churchyards,  and  glebe,  &c., 
and  a  similar  exception  is  to  be  found  in  other  statutes,  see  Dig.  P.  i.  tit. 
Disabilities. 

*708.  If  a  feoffment  or  grant  be  made  by  deed  to  a  corporation  p^--<,-| 
aggregate,  which  consists  of  persons  all  capable,  it  will  give  them  a  L  "-^ 
fee  simple  without  the  word  "successors  ;"(t<)  so,  if  the  head  only  is  capa- 
ble, as  a  gift  to  a  prior  and  convent,  &c.,  where  it  is  given  in  frankal- 
moigne  ;(?<)  so,  if  a  lease  be  made  to  a  corporation  aggregate  for  the  life  of 
the  lessor,  this  is  a  good  estate  for  life,  because  the  life  of  the  lessor,  which 
is  wearing  and  will  determine,  is  the  measure  of  its  continuance  ;  but  if  a 
lease  be  made  to  a  corporation  aggregate  for  their  own-lives,  this  is  no  estate 
for  life,  but  a  fee  simple  ;  for  the  lease  being  made  to  them  as  a  body  politic, 
^vhich  hath  a  continued  succession  and  never  dies,  it  shall  be  good  forever, 
and  the  words  "  for  life"  shall  be  rejected  ]{x'j  so,  a  corporation  aggregate 
may  take  any  chattel,  as  bonds,  leases,  &c.,  in  its  political  capacity,  which 
shall  go  in  succession,  because  it  is  always  in  being ;(?/)  so,  if  a  master  of 
an  hospital  recovers  arrears  of  an  annuitj'^  and  dies,  they  go  to  the  hospital 
and  not  to  the  executor  of  the  master  ;(z)  so,  if  the  President  of  the  College 
of  Physicians  recovers  in  debt,  for  malpractice,  the  successor,  and  not  his 
executor,  shall  have  a  scire  facias  ^(^z^  so,  by  special  custom,  a  corporation 
sole  may  take  goods,  &c.  in  succession,  as  the  chamberlain  of  London, («) 
although  regularl}--  no  chattel  in  possession,  or  action  granted  or  made  to  a 
corporation  sole,  goes  in  succession,  but  it  will  go  to  his  executors  ;(i)  so, 
.not  even  if  granted  to  him  and  his  successors  ;(c)  therefore,  if  a  lease  for 
years  be  made  to  a  bishop  and  his  successors,  this  will  not  go  to  his  succes- 
sors, but  to  his  executors, (f/ )  but  the  ancient  jewels  of  the  Crown  go  to  the 
successor,  and  are  not  devisable  by  testament, (e)  although  it  has  been  said 
that  they  may  be  disposed  of  by  *palent;(e)  so,  the  ornaments  of  p*KKq-] 
the  chapel  belong  to  the  successor  of  a  bishop  ;(/)  so,  a  feoffinent,  <-  -^ 
grant,  &c.  to  a  corporation  sole,  will  not  give  a  fee  in  succession,  unless  it 
be  limited  to  him  and  his  successors  ;(g)  so,  a  corporation  cannot  be  seised 
to  the  use  of  another,  therefore  it  was  said,  that  if  one  by  license,  without  a 
valuable  consideration,  made  a  feoffment,  levied  a  fine,  or  suffered  a  recovery, 
or  the  like  to  a  corporation,  to  the  use  of  J.  S.,  the  corporation  should  have 
it  to  their  own  use  ;(/t)  but  corporations  may  be,  and  in  point  of  fact  are, 
made  trustees. (i) 

(h)  1  Inst.  9,  b.,  94,  b.  (x)  27  H.  8,  15. 

iy)  lb.;  1  Inst.  46,  b. ;  1  Roll.  Abr'.  515.  (z)  1  Koll.  Abr.  515. 

la)  Fuhvood's  case,  4  Co.  65  a;  Byrd  v.  Wilford,  Cro.  El.  464  ;  sec  also  Dy.  48  ;  Hob. 
64.  {h)  Fulwood's  case,  sup.  (c)  Dy.  48.  {(I)  1  Inst.  46. 

(e)  Id.  18,  b.  (p)  Lord  Ilastinsfs  v.  Doiifflas,  Cro.  Car.  344. 

U)  12  Co.  105.  (g)  1  Inst.  94.  {h)  Plow.  102 ;  Jenk.  195. 

(0  Gilb.  Uses,  5, 170. 
December,  1846. — 25 


382  crabb's  law   of  real  property. 

709.  So,  a  corporation  has  an  incident  power  to  make  an  alienation  of 
their  lands  or  goods,  either  for  life  or  years,  and  if  under  their  common  seal 
it  shall  bind  their  successors  ;(A:)(1)  and  although  they  alien  all  their  goods 
and  possessions,  yet  the  corporation  continues  ;(/)(!)  but  an  alienation  by  the 
head,  without  the  body,  is  a  disseisin  ;(?»)  so,  a  corporation  can  convey  by 
bargain  and  sale,  for  they  may  give  a  use,  akhough  they  cannot  stand  seis- 
ed to  a  use  ;(n)  and  as  to  the  restrictions  imposed  on  ecclesiastical  corpora- 
tions by  the  disabling  statutes,  see  Dig.  iii.  tit.  Leases. 

710.  Although  the  power  of  suing  and  being  sued  is  incident  to  a  corpo- 
ration, yet  it  is  not  precisely  the  same  as  with  natural  persons,  for  a  corpora- 
tion must  sue  and  defend  by  attorney  ;(o)  and  as  to  the  name  by  which  they 
must  sue  and  defend,  see  ante,  §§  699,  700  ;  also,  as  to  the  statutory  provi- 
sions, Dig.  P.  i.  ii.  tit.  Companies,  Corporations. 

No  attachment  lies  against  a  corporation, (/j)  but  they  may  be  compelled 
-,  to  appear  by  fine  and  distringas  ;{q)  yet,  *if  they  have  no  lands  nor 
L         -^  goods,  there  is  no  way  to  compel  appearance  either  in  a  court  of  law 
or  equity,  for  it  is  a  rule,  that  for  a  public  concern  the  sheriff'cannol  distrain 
any  individual  member  of  a  corporation  ;(r)  bat  in  an  extraordinary  case, 
where  they  have  no  property  and  will  not  appear,  and  when  consequently 
a  court  of  equity  can  give  no  relief,  the  plaintiff  may  apply  to  the  House  of 
Lords,  who  will  make  a  specific  order  for  relief.(s)  The  summons  to  appear 
must  be  served  on  the  mayor  or  other  chief  officer,  and  that  is  sufficient. (/) 
A  corporation  aggregate  cannot  distrain  in  their  own  persons,  but  by  their 
bailiff,  and  therefore  no  replevin  lies  against  them  by  the  name  of  their  cor- 
poration;(«)  so,  it  cannot  sue  as  a  common  informer.(a^)     An  action  for  a 
false  return  will  lie  against  a  corporation  having  the  return  of  writs,  or  to 
which  any  writ  is   directed  ;(j/)  so,  qiiare  impedit  ;{z)  so,  trover ;(«)  and 
although  it  was  said,  that  a  corporation  cannot  be  excommunicate, (6)  j-et 
they  may  be  made  amenable  to  the  ecclesiastical  courts,  and  may  be  cited  by 
their  proper  names,  as  there  is  no  other  way,  though  in  their  politic  capacity, 
and  if  they  stand  out,  they  may  be  punished  in  their  natural  capacity. (c) 

(A)  1  Sid.  162.  (Z)  W.Jo.  168,  (m)  1  Inst.  341. 

(n)  Holland  v.  Boines,  2  Leon.  1;22  ;  Com.  Big.  tit.  Bargain  and  Sale. 

(0)  1  Inst.  66.  (/O  T.  Raym.  152.  (q)  1  H.  Bl.  209. 
(r)  Case  of  the  City  of  London,  1  Vent,  351  ;  Tlmrsficld  and  Jones,  Skinn.  27, 
(s)  1  Ch.  Ca.  204  ;  2  Vein.  396.                      (0  lb. ;  see  also  Free.  Clia.  131.- 
(u)  Brownl.  175.                                              (x)  2  Str.  1241,  marg. 

ly)  Argent  v.  Dean  and  Chapter  of  St.  Paul's,  16  East,  8. 

(z)  Butler  v.  Hereford  (Bp.,  &e.),  Barnes,  350. 

(a)  Yarhorough  v.  Bank  (Ei)gl.\  16  East,  6.  (J>)  10  Co.  32  b. 

(c)  Thursfield  and  Jones,  Master,  &.C.,  of  the  Company  of  Wax-chandlers,  Skinn,  27. 

(1)  State  of  Maryland  v.  Bank  of  Maryland,  6  Gill  &  Johns.  216.  Union  Bank  v.  Ellicott, 
id.  363.  Pope  v.  Brandon,  2  Stewt.  404.  Catlin  v.  The  Eagle  Bank,  6  Conn.  231.  Revere 
V.  The  Boston  Copper  Company,  15  Pick.  351.  Dana  v.  The  Bank  of  the  United  Slates, 
5  W.  &,  Serg.  223.  Wilde  v.  Jenkins,  4  Paig.  Ch.  Rep.  481.  The  rule  laid  down  in  Sice 
T.  Bloom,  19  Johns.  475,  that  suffering  an  act  to  be  done,  which  destroys  the  end  and  ol)jcct 
for  wliieh  the  corporation  was  instituted,  must  be  regarded  as  equivalent  to  surrender  and 
dissolution,  is  by  subsequent  decision  confined  to  the  peculiar  question  then  before  the 
Court,  viz.,  Whether  the  corporation  could  not  be  considered  dissolved  for  the  purpose 
■of  sustaining  an  action  by  the  creditors  against  the  individual  members  given  by  tiie 
cliarter.  Briggs  v.  Penniman,  1  Hopk.  Ch.  Kep.  301.  8  Cow.  387.  Bank  of  Niagara  v. 
Johnson,  8  Wend.  654. 


FRANCHISES.  383 

711.  In  an  action,  of  whatsoever  kind,  brought  by  a  corporation,  it  is  un- 
necessary to  show  how  they  were  incorporated  ;  but  on  the  general  issue 
pleaded  by  the  defendant,  it  is  said,  that  they  must  prove  that;((/](n  so,  as 
an  action  may  be  supported  in  this  country,  by  a  foreign  corporation,  in  their 
corporate  name  and  capacity,  and  it  is  sufficient  if,  *on  the  general  ^__,-, 
issue  being  pleaded,  they  prove  that  by  the  law  of  the  foreign  country,  L  ^J 
they  were  effectually  created  a  corporation. (e)(2)  But  in  justifying  a  trespass 
in  the  assertion  of  a  privilege  or  franchise  of  a  corporation,  it  is  necessary  to 
show  not  only  the  existence  of  the  corporation,  but  the  manner  in  which  it 
claims  to  be  so,  whether  by  charter,  prescription,  or  Act  of  Parliament. (/) 

A  sole  corporation  having  two  capacities,  natural  and  corporate,  must 
always  shew  in  what  right  he  sues  ;(§•)  but  an  aggregate  corporation  having 
only  a  corporate  capacity,  a  suit  in  their  corporate  name  can  be  only  in  that 
capacity  ;  therefore,  it  is^not  necessary  that  a  mayor  and  commonalty  should 
allege  seisin  in  right  of  the  corporation, (A)  or  a  warden  and  scholars  should 
allege  seisin  in  right  of  their  college. (z) 

In  equity  corporations  answer  under  their  common  seal  and  not  upon  oath, 
but  it  having  been  found  that  they  would  answer  nothing  to  their  prejudice, 
the  Court  have  ordered  that  the  clerk  of  the  companj-^,  and  such  principal 
members  as  the  plaintifi' thinks  fit,  should  answer  upon  oath.(^-)  Sometimes 
where  a  discovery  is  necessary  before  a  plaintiff" can  bring  his  action  against 
a  corporation,  a  bill  may  be  filed  against  the  corporation  and  their  secretary 
or  principal  officer  for  this  purpose  ;  but  in  that  case,  if  any  of  the  matters 
called  for  would  be  prejudicial  to  the  corporation,  and  not  necessary  to  the 
plaintiff''s  case,  the  officer  will  not  be  compelled  to  discover  such  parts. (/) 
If  the  majority  of  the  members  of  a  corporation  are  ready  to  put  in  their  an- 
swer, and  the  head,  who  has  the  custody  of  the  common  seal,  refuses  to  alfix 
it  to  the  answer,  a  court  of  equity  *will  stay  the  process  against  the  ^  -. 
corporation  until  ah  application  can  be  made  to  the  Court  of  dueen's  L  -1 
Bench  for  a  mandamus  to  compel  him,  which  that  court  will  grant. (?n) 

Before  the  3  &  4  W.  4,  c.  27,  s.  29,  (see  Dig.  P.  iii.  tit.  Limitations,) 
ecclesiastical  corporations  were  not  within  any  of  the  Statutes  of  Limitations 

(rf)  Hob.  211. 

(e)  Dutch  West  India  Company  v.  Henriques  van  Moyses,  2  Ld.  Raym.  1535  ;  S.  C,  1 
Str.  612.  (/)  Pitts  V.  Gainer,  1  Ld.  Raym.  558. 

(«•)  Dy.  102 ;  Plow.  102.  {h)  1  Leon.  153. 

(i)  Cro.  El.  232  ;  1  Andr.  272. 

[k)  Anon.,  1  Vern.  117  ;  Wycli  v.  Meal,  3  P.  Wms.  310  ;  see  also  Fenton  v.  Hug-he,?,  7 
Ves.  289  ;  Dummer  v.  The  Corporation  of  Chippenham,  14  Ves.244;  Mitf.  Eq.  P.  C.  153. 

(/)  MoodcUy  V.  Morton,  1  B.  C.  C.  471.  (m)  R.  v.  Dr.  Wyndham,  Cowp.  377. 


(1)  Such  proof  is  required  on  the  general  issue  beino^  pleaded.  Agnew  v.  The  Bank,  2 
Harr.  &.  Gill,  493.  Carlile  v.  Bates,  8  Johns.  378.  Dutchess  v.  Davis,  14  Johns.  245.  Bank 
V.  Weed,  19  id.  300.  United  States  Bank  v.  Stearns,  15  Wend.  314.  Reese  v.  Conoco- 
cheaque,  5  Rand.  329. 

Contra,,  Holding-  such  pica  an  admission  of  the  fact.  Monumoi  v.  Rogers,  1  Mass. 
164.  Wittington  v.  The  Farmers'  Bank,  5  Har.  &  Johns.  493  ;  but  this  was  created  by  a 
public  law  of  the  state  where  the  suit  was  brought.  Methodist  Church  v.  Wood,  5  Ham. 
286.  Conard  v.  The  Atlantic  Ins.  Co.,  1  Peters,  450.  The  Society  v.  Pawlct,  4  Pet.  501. 
Concord  v.  M'lntire,  6  N,  Hamp.  527.  Taylor  v.  The  Bank,  7  "Monr.  584.  Boston  v. 
Spooner,  5  Vermont,  93. 

(2)  Bank  of  Augusta  v.  Earle,  13  Pet  519-90. 


384:         crash's  law  of  real  property. 

then  in  force,  and  ccu]d  not,  therefore,  bar  their  successors  by  neglecting  to 
bring  actions  for  the  recovery  of  their  possessions. (n) 

712.  Corporations,  in  their  character  of  owners  or  occupiers  of  houses  or 
lands,  are  subject  to  the  same  burthens  as  individuals  are  subject  to  in  the 
same  character.(l)  Having  lands  or  tenements  in  any  shire,  and  residing 
in  any  town  corporate,  they  are  said  to  be  inhabitants  within  the  purview  of 
the  22  H.  8,  c.  3,  for  the  repair  of  bridges  ;(o)  so,  they  are  liable  to  be  rated 
to  the  poor  within  the  43  El.  c.  2,  in  respect  of  lands  whereof  they  are  seis- 
ed in  fee  for  their  own  profit  \[p^  so,  they  are  rateable  to  the  repairs  of  the 
church  •firf)  so,  they  may  be  bound  exclusively  to  the  repair  of  a  highway, 
bridge,  or  creek,  by  reason  of  tenure,  or  they  may  be  so  compelled  by  force 
of  a  general  prescription  that  they  ought  and  have  been  used  to  do  so  from 
time  immemorial,  without  an  allegation  that  they  used  to  do  so  in  respect^  of 
the  tenure  of  certain  lands,  or  for  any  other  consideration,  because  a  corpora- 
tion, in  judgment  of  law,  never  dies  ;  and,  therefore,  if  they  were  ever  bound 
to  such  a  duty,  they  must  continue  to  be  so  always  ;(r)  neither  is  it  any  plea 
that  they  have  done  it  out  of  charity,  for  what  they  have  always  done  they 
shall  be  presumed  to  have  been  always  bound  to  do  ;  therefore,  if  a  bishop 
or  prior  halh  once  or  twice  of  alms  repaired  a  bridge,  it  bindeth  not,  and 
P,*p.-«-|  *yet  is  evidence  against  him  until  he  prove  the  contrary,  but  if  time 
L  J  out  of  mind  they  and  their  predecessors  have  repaired  it  of  alma, 
this  shall  bind  them  to  it  ;(s)  and  where  a  party  is  bound  ratione  prescrip- 
tionis  tanfiim,  there  a  distinction  has  been  taken  between  bodies  politic, 
spiritual,  or  temporal,  and  natural  persons  ;  for  bodies  politic  may  be  bound 
by  usage  or  prescription  only,  because  they  are  local  and  have  succession 
perpetual,  but  a  natural  person  cannot  be  bound  by  the  act  of  his  ancestor, 
without  a  lien  or  binding  and  assets. (/) 

It  is  said  that  it  hath  not  been  known,  that  a  corporation  hath  been  bound 
in  a  recognizance  or  statute-merchant  ;(?<)  so,  a  corporation  cannot  be  out- 
lawed ;(.t)  and  as  to  what  actions  a  corporation  may  be  liable  to,  see  ante 
§§  710,  711. 

713.  "  As  to  the  remedy  of  levying  a  duty  upon  a  corporation,  the  books 
all  agree  that  it  can  be  done,  though  they  differ  as  to  the  mode."(y)  Shep- 
pard,  in  his  Treatise  upon  Corporations,  (cited  in  R.  v.  Gardner,  Cowp. 
85,)  says,  "  If  a  sum  of  money  be  to  be  levied  upon  a  corporation,  it  may 
be  levied  upon  the  mayor  or  chief  magistrate,  or  upon  any  person  being  a 
member  of  the  corporation;"  see  also  Sty.  367  ;  but  in  the  Case  of  the  City 

(7J)  Plow.  358  ;  11  Co.  78  b ;  1  Roll.  Rep.  151.  (o)  2  Inst.  703. 

(/>)  R.  V.  Gardner,  Cowp.  79.  (7)  Tliursficld  and  Jones,  T.  Jo.  187. 

(r)  1  Hawk.  P  C.  c.  76,  s.  8;  Bac.  Abr.  tit.  Corporations,  (E.  1);  see  also  Mayor  of 
Lynn  v.  Turner,  Cowp.  87. 

(s)  Master  of  Leonard's  case,  10  E.  3.  28,  29,  cited  2  Inst.  700. 

(0  The  Prior  of  Markiat's  case,  49  E.  3.  5  b,  cited  2  Inst.  700 ;  see  also  21  E.  4,  pi.  3  ; 
R.  V,  Ecclesfield  (Inhabs.),  1  B.  &,  A.  348. 

(m)  Moor,  68,  pi.  182.  (x)  10  Co.  32,  b. 

(y)  Per  Aston,  J.,  R.  v.  Gardner,  Cowp.  85. 


(1)  United  Stales  v.  Amidy,  11  Wheat.  3S2.     The  People  v.  The  Utica  Insurance  Co., 
5  Johns.  358. 


FRANCHISES.  385 

of  London, (j2-)  it  is  said,  "  that  for  a  duty  or  charge  upon  a  corporation  every 
particular  member  thereof  is  not  hable,  but  process  ought  to  go  in  their 
pubhc  capacity  ;"  and  in  R,  v.  Gardner,(rt)  this  is  held  to  be  the  right  law, 
although  in  Thursfield  and  Jones(6)  it  is  said,  "If  the  company  had  neither 
lands  nor  goods,  there  was  no  way  to  make  them  appear,  yet  if  they  stood 
out,  they  must  lie  by  the  heels  in  their  natural  capacity."(l) 

*If  a  corporation  aggregate  disseise  to  the  use  of  another,  they  ^^__-| 
are  disseisors  in  their  natural  capacity,  and  the  persons  who  com-  L  J 

mitted  the  wrong  shall  be  charged  therewith,  and  not  the  corporation, 
which  consisting  of  a  constant  succession  of  various  persons,  and  as  a  cor- 
poration, can  regularly  do  no  act  without  writing  ;(c)  and  if  a  mayor  or  any 
other  member  of  a  corporation,  procure  a  false  return  to  be  made  to  a  man- 
damus, they  may  be  proceeded  against  in  their  private  capacities  ;(f/)  an 
action,  however,  cannot  be  maintained  against  individuals  for  acts  erroneously 
done  by  them  in  a  corporate  capacity  to  the  injury  of  the  plaintiff,  unless, 
at  least,  there  be  ground  to  impute  malice  to  them.(e) 

In  equity  the  private  members  of  a  company  have  been  made  liable  to 
the  company's  debts,  v/here  the  company  had  no  goods ;(/)  and  as  to  the 
liability  of  the  members  of  joint-stock  companies  under  different  statutes, 
see  Dig.  p.  ii.  tit.  Companies. 

714.  Where  no  special  provision  is  made  by  the  constitution  of  a  corpo- 
ration, the  whole  are  bound  by  the  acts,  not  only  of  the  major  part,  but  of 
the  major  part  of  those  present  at  a  regular  corporate  meeting,  Avhether  the 
number  present  be  a  majority  of  the  whole  or  not;(g•^(3)  and  so,  although  a 
particular  constitution  require  the  presence  of  a  majority  of  the  whole  number, 
yet  the  concurrence  and  consent  of  a  majority  of  the  whole  is  not  necessary, 
it  is  sufficient  that  a  majority  of  the  number  present  concur ;(//)  so,  where  a 
number  less  than  a  majority  of  the  whole  are  by  a  particular  constitution 
competent  to  do  a  corporate  act,  the  act  of  a  majority  of  that  smaller  number 
is  equivalent  to  tlie  act  of  the  majority  of  the  whole  ;  thus  by  the  constitu- 
tion of  the  *City  of  London,  forty  are  sufficient  to  form  a  court  of  fskkq-i 
common  council,  though  the  number  of  common  councilmen  exceeds  L  -' 
the  double  of  that  number,  and  a  majority  of  the  forty,  if  no  more  be  pre- 

{z)  1  Vcntr.  351.  {a)  Sup.  (//)  Skinn.  27. 

(c)  Bro.  tit.  Disseisin,  65;  cited  Bac.  Abr.  tit.  Disseisin,  (B.) 

{d)  Mayor  of  Thetford's  case,  1  Salk,  192  ;  R.  v.  Pilkington,  Carth.  171 ;  R.  v.  Rippon, 
1  Ld.  Raym.  564. 

(e)  Harman  v.  Tappenden,  1  East,  555.  (/)  2  Vern.  396. 

ig)  Cov/p,  249.  (A)  2  Burr.  1019. 


(1)  A  distinction  is  taken  between  those  quasi  corporations  invested  with  siicli  powers 
without  their  consent,  being  political  in  their  character,  such  as  towns,  counties,  hundreds, 
&,c.,  in  which  every  member  is  liable  to  the  payment  of  the  debts  ;  against  these  no  action 
lies  unless  given  by  statute ;  and  a  proper  aggregate  corporation,  having  or  being  sup- 
posed to  have  a  corporate  fund,  where  there  is  no  liability  of  the  individual  corporators, 
unless  it  be  given  by  the  charter.  Riddle  v.  Proprietors,  7  Mass.  187.  Commonwealth 
V.  Blue  Hill,  5  Mass.  422.  IMarcy  v.  C^lark,  17  id.  336.  Adams  v.  Wiscassct  Bank, 
1  Greenl.  364.  Merchants'  Bank  v.  Cook,  4  Pick.  414.  Atwater  v.  Woodbridgc,  6 
Conn.  228. 

(2)  Cram  v.  Bangor,  3  Fair'f.  359.     Revere  v.  Boston  Copper  Co.  15  Pick.  363. 


386  crabb's    law    of    real   property. 

sent,  bind  the  whole  corporation. (z)  Where  a  charter  requires  an  act  to  he 
done  by  the  major  part  of  a  definite  body,  no  corporate  assembly  can  be 
composed  of  less  than  a  majority  of  such  definite  body,  and,  consequently, 
when  the  number  is  reduced  below  that  majority,  the  power  of  acting  is  at 
an  end  ;(A:)(1)  sed  seats  where  the  number  is  indefinite,  for  there  the  words 
"major  part"  have  no  operation,  and  any  number  of  the  body,  duly  assem- 
bled, however  small,  is  sufficient  to  form  a  corporate  assembly. (/) 

715.  With  respect  to  the  concurrence  of  the  head  of  the  corporation,  it 
appears  to  be  a  rule  that  the  head  is  but  a  member  of  the  acting  part,  in  the 
same  manner  as  any  other  member,  and  without  a  particular  usage  or  the 
express  provision  of  a  charter,  he  has  no  negative  voice  ;  therefore,  where  a 
power  of  election  is  vested  in  a  set  number,  quorum  A.  and  B.  to  be  two, 
their  presence  only  is  required,  and  not  their  consent,  Cotton  and  Davies;(m) 
see  also  R.  v.  Blythe,(n)  R.  v.  Sutton, (o)  and  Serjeant  Whitacre's  case,(/?) 
in  which  last  case  it  was  held,  that,  if  the  actual  consent  of  the  bailiffs  had 
been  required,  their  consent  should  be  intended,  either  as  actually  given,  or 
as  included  in  that  of  the  majority,  for  that,  as  in  all  corporate  acts,  the  act 
of  the  majority  is  the  act  of  the  whole  ;  so,  the  bailiffs  being  the  head  of  the 
corporation,  nothing  could  be  done  without  their  presence,  though  it  had  not 
been  expressly  required,  and  its  being  so  required  did  not  render  their  con- 

,  currence  necessary;  *but  where  the  provisions  of  a  charter  direct 
L  J  that  the  new  mayor  shall  be  sworn  before  his  predecessor,  the  pre- 
sence only  of  the  latter  is  not  sufficient ;  there  must  also  be  his  assent,  or  at 
least  not  his  dissent. (5') 

So,  if  the  charter  says  the  mayor  shall  summon  a  court,  and  he  refuses,  it 
seems  that  this  may  be  done  without  him.(?') 

716.  The  necessity  of  summoning  the  members,  and  the  mode  of  so 
doing,  is  another  point  on  which  the  validity  of  corporate  proceedings  de- 
pends. Where  a  corporate  act,  as  an  election,  is  to  be  done  not  on  a 
charter  day,  whether  to  be  done  by  the  whole  corporation  or  by  a  select 
number,  notice  of  the  meeting  must  be  given  to  all;(2)  but  where  an  elec- 
tion is  to  be  at  a  charter  day,  fixing  a  particular  day,  there  a  summons  is 
not  necessary,  for  every  member  is  bound  to  take  notice  of  the  day  ;(*)  but 
where  the  whole  corporation  are  summoned  for  a  particular  purpose,  as  to 
receive  the  resignation  of  a  common  councilman,  a  select  body,  who  are  all 
present  and  consenting,  may,  at  the  same  meeting,  without  any  particular 

(!)  Att.-Gcn.  V.  Day,  2  Atk.  212. 

(A)  R.  V.  Newsham,  Say.  211  ;  R.  v.  Varlo,  Cowp.  248;  R.  v.  Monday,  Id.  530;  R.  v. 
Grimes,  5  Burr.  2598;  R.  v.  Bcllringer,  4  T.  R.  810;  R.  v.  Miller,  6  T.  R.  268;  R.  v. 
Morris,  4  East,  17. 

(I)  R.  V.  Varlo,  &c.,  sup.  {m)  1  Str.  53. 

(n)  5  Mod.  404.  421.  (0)  10  Mod.  74. 

(/))  2  Ld.  Raym.  1233;  S.  C.  nom.  R.  v.  Ipswicli  (Railiffs)  2  Salk.  434. 

(7)  R.  V.  Ellis,  2  Str.  994 ;  more  fully  reported  in  R.  v.  Courtenay,  9  East,  252,  n. 

(r)  R.  V.  Atkins,  3  Mod.  3. 

(s)  1  Vez.  416  ;  R.  v.  Slirewsbury  (Mayor,)  Ca.  temp.  Hardw.  151. 


(1)  Note  (a)  to  7  Cowcn's  Rep.  530. 

(2)  Gordon  v.  Preston,  1  W.  387.    Stow  v.  Wyse,  7  Conn.  214. 


FRANCHISES.  337. 

summons  to  them  fo)'  that  purpose  in  their  select  capacity,  proceed  to  the 
election  of  a  common  councilman  in  the  place  of  the  other  resigned,  the 
power  of  election  being  in  the  select  body,  and  the  charier  not  requiring  any 
previous  summons,  R.  v.  Theodorick,(i)  recognising  R.  v.  Carlisle  (Mayor, 
&G.,^(u\  where,  instead  of  all,  only  some  of  the  select  body  were  present; 
also  R.  V.  Strangways,  cited  in  R.  v.  Shrewsbury,  (Mayor,)(y)  in  which 
case  it  was  held  that  when  the  acts  are  to  be  done  by  a  select  number, 
notice  must  be  given  of  the  time  of  meeting,  and  that  it  is  to  do  some  corpo- 
rate act,  though  what  particular  corporate  act  need  not  be  specified;  and  in 
such  case  the  acts  of  a  majority  would  bind  the  whole  body;  or  if  all  were 
present,  *though  by  accident  and  ivithout  notice,  their  acts  would  j^^^.-. 
be  good,  but  the  acts  of  a  majority  merely  in  such  a  case  would  not  L  J 
be  binding;  so,  in  R.  v.  Wake,(a^)  it  was  held,  that  wherever  notice  is  given 
for  one  particular  business,  the  body  cannot  go  into  other  business,  unless 
the  ivJiole  body  is  met,  and  it  is  done  by  consent. 

Where  a  summons  is  necessary,  it  is  not  sufficient  that  the  usual  and 
general  orders  be  given  to  the  summoning  officer,  the  latter  must  actually  do 
everything  he  possibly  can  to  summon  all  the  members  of  the  select  body  ;(y) 
and  it  is  laid  down  as  a  rule,  that  where  there  is  a  usual  method  of  notice, 
that  cannot  be  dispensed  with,  though  there  be  actual  summons  of  all  the 
members,  unless,  indeed,  every  single  member  be  present  at  the  meeting, 
and  consent  to  waive  \i,{z'\  but  notice  to  non-residents  is  not  necessary. (o) 

717.  Although  it  is  now  settled  that  a  power  of  amotion  or  disfran- 
chising its  members  is  incident  to  a  corporation, (6)  yet  a  removal  being 
an  act  of  an  odious  nature,  all  clauses  concerning  it  in  a  charter  must  receive 
a  strict  interpretation  ;  therefore,  where  a  charter  empowers  a  majority  to 
to  remove  a  person,  held,  that  the  word  "  majority"  should  be  understood  a 
majority  of  the  whole  corporation  ;(c)  so,  in  such  case  a  general  summons 
without  specifying  any  particular  act  for  which  the  meeting  is  called  is  not 
sufficient,  it  is  necessary  to  mention  that  it  is  intended  to  consider  the  remo- 
val of  the  particular  person  ;((/)  so,  where  it  is  intended  to  remove  any  qne 
of  the  members  or  officers  of  a  corporation,  it  is  absolutely  necessary,  not 
only  that  he  should  be  summoned  generally  to  attend, (1)  but  he  must  have 
a  particular  summons  to  attend,  and  answer  the  particular  charge  alleged 
*against  him  ;(e)  but  under  certain  circumstances  such  notice  may  p^K/^^,-. 
be  dispensed  with,  as  where  a  man  is  charged  in  plenis  comitiis  and  L  -' 
ordered  to  prepare  his  defence  by  such  a  time,  this  will  be  good,  though 
there  be  no  actual  summons,  because  if  the  party  be  heard  it  is  sufficient  ;(y) 
but  it  seems  to  be  doubtful,  whether  his  being  charged  and  answering  in  the 
same  assembly  will  cure  the  want  of  notice. (»•) 

(t)  8  East,  543.  (w)  1  Str.  38.5.  (c)  Sup. 

(x)  Barnard.  80.  (y)  R.  v.  Shrewsbury  (Mayor,)  Ca.  temp.  Ilardw.  147. 

(2)  R.  V.  May,  5  Burr.  2G82.  {n)  R.  v.  Grimes,  .5  Burr.  2599. 

(/;)  R.  V.  Richard.son,  1  Burr.5.?n  ;  and  see  ante,  §  701.      (c)  R.  v.  Sutton,  10  Mod.  7G. 

{il)  R.  V.  Liverpool  (Mayor,)  2  Burr.  723;  R.  v.   Doncastcr  (Mayor,  &c.,)  Id.  738. 

{(•)   Bag;r's  case,  1 1  Co.  99  ;  Glvdu's  case,  4  Mod.  33,  37. 

(  /•)  R.  V.  Chalke,  1  Ld.  Ravm."'225  ;  S.  C,  1  Salk.  42. 

(g)  Serjeant  Wliitakcr's  case,  2  Ld.  Raym.  1240  ;  S.  C.  2  Salk.  435. 

(1)  Commonwealth  v.  Pennsylvania  Beneficial  Inst.,  2  S.  &.  R.  141.     Delany  v.  Neuse, 
1  Hawk.  274. 


388        crabb's  law  of  real  property. 

When  a  man  is  removable  for  non-residence,  there  is  no  necessity  to  sum- 
mon him,  because  he  is  out  of  the  reach  of  summons  ;(/j)  but  if  he  be 
removable  for  non-attendance  at  the  corporate  assembly,  he  must  have  had 
personal  notice  to  attend,  and  that  his  presence  was  necessary,  for  the  usual 
notice  of  the  intended  meeting  will  not  be  sufficient,  unless  that  usual  notice 
be  personal. (i) 

A  man  may  be  constituted  a  burgess,  or  appointed  to  an  office  by  deed 
under  the  common  seal,  and  in  that  case  he  ought  to  be  discharged  in  the 
same  manner,  but  where  the  party  is  constituted  or  appointed  by  election, 
nothing  more  is  required  than  an  entry  in  the  corporation  books,  and  he  may 
be  discharged  by  an  order  entered  in  the  same  manner  ;(A;)  so,  where  an 
office  is  granted  by  deed,  the  resignation  or  surrender  must  also  be  by  deed, 
but  where  an  officer  is  appointed  b}^  election,  the  corporation  may  accept 
his  resignation  by  parol  before  them ;(/_)  as  to  what  may  be  done  by  deed 
or  otherwise,  see  ante,  §  704. 

718.  Regularly,  there  can  be  no  election  but  to  an  office  which  is  actual- 
ly vacant,  for  though  it  may  be  a  practice  in  some  cases  to  choose  a  person 
^  ,  beforehand,  which  may  be  *called  an  inceptive  election,  and  on  the 
L  -'  death  of  the  predecessor  to  admit  the  person  before  nominated, 
which  completes  the  election,  yet  such  an  election  is  not  binding  on  the 
electors,  and  when  the  vacancy  happens  they  may  elect  another. (77?) 

If  the  election  of  a  particular  officer  be,  by  ancient  charter,  vested  in  one 
body,  a  subsequent  one  cannot  of  itself  alter  the  mode  of  election  ;  but  if  the 
subsequent  charter  be  accepted  by  the  corporation  at  large,  and  they  act  in 
conformity  to  it,  and  acquiesce,  such  charter  is  good,  and  this  submission 
and  acquiescence  shall  be  an  evidence  of  their  consent. (n)  There  may  be 
an  election  in  one  body,  and  approbation  in  another  ;(o)  so,  a  charter  may 
give  a  power  of  election  to  a  less  number  than  the  majority  of  a  definite 
body  ;  and  in  a  prescriptive  corporation,  a  usage  to  this  effect  is  evidence  of 
such  a  charter ;(»)  so,  where  the  person  elected  is  unqualified,  and  the 
electors  have  notice  of  the  want  of  qualification,  their  votes  to  him  are  thrown 
away,  and  the  person  who  has  the  next  greater  number  is  to  be  considered 
as  duly  elected,  and  is  entitled  to  be  sworn  in  ;(</)  so,  where  a  candidate  is 
proposed  in  a  corporate  meeting  duly  assembled,  and  a  majority  of  the  per- 
sons assembled  protest  against  any  election,  and  do  not  propose  any  other 
candidate,  the  minority  may  elect  the  candidate  proposed  ;(r)  so,  where  the 
time  and  manner  of  election  are  not  fixed  by  charter  or  prescription,  it  is 
competent  to  a  corporation  to  make  regulations  respecting  them.(s)  To  the 
above  points  of  difference  between  corportions  and  natural  persons  may  be 

(A)  R.  V.  Triiebody,  2  Ld.  'Rayni.  1275,  cited  Dougl.  152,  157 ;  sec  also  Styles,  151  ; 
Paltn.  451  ;  1  Sid.  14 ;  2  Sid.  97  ;  Fort.  205  ;  Comb.  198  ;  1  Show.  259  ;  R.  v.  Richardson, 
1  Burr.  517.  (t)  R.  v.  Richardson,  1  Burr.  517,  520.  540. 

(k)  1  Ld.  Raym.  226. 

(Z)  R.  V.  Rippon  (IVI:iyor)  1  Ld.  Raym.  563  ;  S.  C,  2  Salk.  423. 

(m)   Dr.  Owen  and  Dr.  Stainol,  Skinn.  45.  (n)  R.  v.  Larwood,  Skinn.  574. 

(0)  R.  V.  Norwich  (Mayor,  &c.,)  2  Salk.  436.  (/))  R.  v.  Hoytc,  6  T.  R.  430. 

(7)  R.  V.  Boscawen,  &.c.,  cited  in  Oldknow  v.  Wainwrig-ht,  2  Burr.  1020  ;  Cowp.  537 ; 
Taylor  v.  Bath  (Mayor,  &c.,)  cited  Cowp.  537 ;  R.  v.  Hawkins,  10  East,  211  ;  R.  v.  Par- 
ry,  14  East,  549.     ^ 

(r)  Olknow  v.  Wainwright,  2  Burr.  1017;  see  also  R.  v.  Monday,  Cowp.  5.30. 

(s)  Macshell  v.  Ncvinson,  2  Ld.  Raym.  1355  ;  Newling  v.  Francis,  3  T.  R.  189. 


FRANCHISES.  389 

added  some  others,  as  that  a  corporation  cannot  be  *executors,  ps-«4-i 
administrators,  or  joint  tenants,  althougli  they  may  be  trustees,  and  L  -I 
the  members  regularly  cannot  be  witnesses  for  the  corporation  ;(f)  so,  tliey 
cannot  commit  treason  or  felony,  or  be  excommunicated. (f) 

6,  How  Corporations  arc  visited. 

719.  The  visitation  of  corporations  comprehends  in  it — 

a.  By  whom  the  visitation  may  be  made. 

b.  Extent  of  the  visiter's  jurisdiction. 

c.  How  far  the  visitatorial  power  may  be  controlled. 

a.  By  whom  Visitation  may  he  made. 

As  a  rule,  civil  corporations  are  subject  to  the  visitation  of  the  queen  in 
her  Court  of  Ciueen's  Bench  ;(1)  spiritual  corporations  are  visited  in  eccle- 
siastical matters  by  the  "ordinary  ;  and  eleemosynary  corporations  by  the 
founder,  his  heirs  or  assigns, (r<)  but  the  term  is  most  commonly  applied  to 
spiritual  or  eleemosynary  corporations. 

As  to  spiritual  corporations,  it  is  said,  that  the  king,  by  the  ancient  law  of  the 
realm,  had  power  to  visit  and  reform  all  abuses  in  the  church  ;(.r)  therefore 
all  free  chapels  of  the  king's  foundation  are  visitable  by  the  queen  and  not  by 
the  ordinary  ;(?/)  so,  all  hospitals  and  donatives  \[y)  so,  though  governors 
of  an  a  hospital  or  school  are  appointed,  yet,  if  they  have  not  an  express 
visitatorial  power  given  to  them,  the  queen  may  visit  them  ;(2)  so,  by  the 
25  H.  8,  c.  21,  archbishops  and  others  shall  have  no  authority  to  visit  any 
college,  hospital,  &c.,  before  exempt  from  their  visitation,  but  visitation 
shall  be  by  the  king,  &c. ;  so,  by  the  31  H.  8,  c.  13,  all  monasteries,  &c. 
dissolved,  and  all  churches  belonging  to  them,  although  before  exempt,  shall 
be  within  the  visitation  of  the  ordinary  or  of  the  queen,  &c. ;  so,  where 
*the  queen  and  a  subject  join  in  a  foundation,  the  queen  shall  ^^^_-, 
visit  as  a  founder.(«)  '- 

The  visitation  of  the  queen's  free  chapels,  fee,  shall  be  by  her  chancel- 
lor,(6)  and  if  any  other  visit  them,  prohibition  lies  ;(c)  so,  the  queen  may 
make  visitation  by  special  commissioners, (rf)  as  provided  by  25  H.  8,  c.  21, 
as  to  visiting  colleges,  &c.  before  exempt ;  so,  by  the  1  El.  c.  1,  all  privi- 
leges, jurisdictions,  &c.  heretofore  used  for  visiting  the  ecclesiastical  estate, 
persons,  &c.  shall  be  annexed  to  the  Crown. 

720.  All  spiritual  persons  generally  are  subject  to  the  visitation  of  the 
bishop  or  other  ordinary  ;(e)  so,  by  the  2  H.  5,  c.  1,  the  ordinary  shall  in- 
quire of  all  hospitals  not  founded  by  the  king,  of  the  manner  of  their  foun- 
dation, governance,  &c.,  and  though  the  patronage  of  a  deanery  be  given  to 

(0  10  Co.  32;  1  Comm.  470.  {v)  1  Comm.  480. 

[x)  Dav.  4  ;  2  Roll.  Abr.  230.  (y)  2  Roll.  Abr.  230. 

{z)  1  Eq.  Ca.  Ab.  182.  {n)  2  Inst.  (i8. 

(/<)  F.  N.  B.  42,  A.;  1  Inst.  96,  a;  Dav.  46  b;  2  Roll.  230. 

(c)  Reg.  40  b.  (</)  Dav.  46  b.  (e)  2  Roll.  Abr.  229. 

(1)  In  roniisylvania  vested  in  the  S.C.,  Bkck  v.  Vandyke,  2  Whart.  313. 


390        crabb's  law  of  real  property. 

the  queen  by  Act  of  Parliament,  with  a  saving  of  all  rights,  &c.  to  all  stran- 
gers exceiDt  the  bishop,  and  the  queen  appoints  a  dean,  the  dean  is  visitable 
by  the  ordinary  notwithstanding  the  saving,  for  this  relates  to  the  posses- 
sions, and  the  deanery  is  spiritual ;  so,  if  an  hospital  be  suppressed  by  Act 
of  Parliament,  and  their  possessions  vested  in  the  queen,  the  visitation  of 
them  does  not  thereby  cease  till  the  incorporation  of  them  be  dissolved  ;(e) 
so,  every  spiritual  hospital  shall  be  visited  by  the  ordinary,  but  a  lay  corpo- 
ration he  neither  can  nor  ought  to  visit  ;(£^)  so,  by  the  14  El.  c.  5,  after  the 
death  of  the  founder,  if  no  visiter  be  appointed,  the  bishop,  or  his  chancellor, 
shall  visit  all  hospitals  within  his  diocese,  to  see  that  they  be  ordered  ac- 
cording to  the  statutes  of  the  foundation.(o•^ 

If  the  visitatorial  power  be  given  to  the  bishop  of  E.  not  by  his  Christian 
name,  the  grant  is  to  him  in  his  politic  capacity,  and  it  is  not  necessary  to 
r*^f\f\l  '^^'^'■ioi^  his  successors. (/^)  *Visitation  shall  be  made  without  com- 
L  -^  mission,  for  it  is  under  the  Great  Seal,(i)  and  by  the  ancient  law  it 
ought  to  be  annual, (A;)  but  by  the  modern  practice  the  bishop  makes  only  a 
triennial  visitation. (/c) 

721.  If  any  foundation  for  charitable  purposes  be  made  by  a  subject,  and 
no  special  visiter  appointed,  the  founder  and  his  heirs  by  the  common  law 
are  visiters, (/)  as  the  founder  of  a  college  or  hospital  not  spiritual  ;(?n)  if  gover- 
nors be  appointed,  but  no  visiter,  the  governors  shall  visit  ;(n)  so,  if  a  common 
person  be  founder,  he  shall  visit,  although  the  queen  afterwards  gives  to  the 
same  corporation  greater  possessions. (o) 

So,  the  founder  or  patron  of  any  eleemosynary  foundation  and  his  heirs 
are  visiters,  though  the  patron  does  not  claim  to  be  so  during  his  lire;(;)) 
and  this  visitatorial  power  is  incidental  to  the  patronage  by  the  common  law, 
not  introduced  by  any  canon  or  ecclesiastical  law.(73) 

So,  upon  the  foundation  of  any  corporation  aggregate  for  a  charit}'-,  the 
founder  may  constitute  a  special  visiter,(//)  and  as  the  power  of  appointing 
a  visiter  is  entirely  in  the  founder,  he  may  delegate  it  either  generally  or 
specially  ;  if  he  appoint  a  general  visiter  without  any  restraint,  the  person 
so  appointed  has  all  incidental  powers  ;  but  a  person  constituted  visiter  in 
general  terms  may  be  restrained  in  particular  instances,  and  a  founder  may 
appoint  a  special  visiter  for  a  particular  purpose  and  no  further.  So,  he 
may  make  a  general  visiter,  and  yet  appoint  an  inferior  particular  power,  to 
be  executed  by  another  person ;  thus,  the  visitation  at  large  may  be  in  one 
person,  and  that  of  one  of  the  members  as  the  head  may  be  in  another  per- 
r-^e^f.^-,  son  who  shall  be  ^special  visiter  ;(r)  and  where  there  are  such 
L  -^  special  visiters,  governors,  or  overseers,  they  are  not  by  the  39  El. 
c.  6,  to  be  subject  to  the  commissioners  for  charitable  uses. 

No  technical  or  set  form  of  words  is  necessary  for  the  appointment  of  a 

(e)  2  Roll  Abr.  229.  (g-)  Case  of  Sutton's  Hospital,  10  Co.  31  a. 

(Ii)  Bontlcy  v.  Ely  (Bp.),  2  Sir.  913 ;  S.  C,  Fitzjr.  308. 
(t)  2  Rushw.  451.  (A)  Cod.  J.  Ecc.  998. 

(/)  8  Ass.  29  ;  Ca.  Pari.  45;  Eq.  Ca.  Ab.  180 ;  Phillips  v.  Bury,  4  Mod.  124. 
(»0  Ca.  Pari.  46  ;  Bro.  Deposition,  ]0;  Noy,  91 ;  2  Roll.  Abr." 230. 
(n)  Case  of  Sutton's  Hospital,  10  Co.  31.  (o)  2  Inst.  68. 

ip)  Ca.  Pari.  45 ;  cited  Com.  Dig.  tit.  Visitor,  (A.  4).  (9)   1  Inst.  9G,  a. 

(r)  St.  John's  College  v.  Toddington,  1   Burr.  200 ;  see  also  Fitzg.  108.  307 ;  3  Atk. 
663;  I  Vcz.  18;  2  Vcz.  328, 


FRANCHISES.  391 

visiter ;  visitator  sit  Episcopus  EHensis,'"  is  an  appointment  of  a  general 
and  perpetual  visiter  ;(s)  and  a  person  may  be  a  general  or  special  visitor 
without  any  express  appointment,  by  construction  and  implication  from  vari- 
ous branches  of  the  statutes  ;(s)  so,  if  the  founder  shows  his  intention  that 
a  certain  individual,  or  constituted  body,  or  corporation  sole  shall  exercise 
those  powers  which  a  visiter  would  have,  that  has  the  effect  of  an  appoint- 
ment -,[1)  so,  a  power  to  interpret  and  determine  doubts  upon  the  statutes,  if 
given  in  clear  words,  may  itself  constitute  a  visitatorial  power. (m) 

If  the  founder  dies,  without  making  any  appointment  of  a  visiter,  and 
without  heirs,  it  will  in  that  case  devolve  upon  the  queen,  to  be  executed  by 
the  Great  Seal.(x) 

b.  Extent  of  the  Visiter's  Jurisdiction. 

722.  It  is  only  over  eleemosynary  foundations  that  the  visitatorial  power, 
properly  so  called,  extends  •,{y)  and  the  ordinary  may  in  his  general  visita- 
tion, by  virtue  of  his  general  power,  deprive  a  canon  or  prebendary  for  incon- 
tinency  or  other  offences  described  in  the  statutes ;  and  this  of  his  own 
authority,  without  observing  all  the  forms  the  statutes  may  appoint. (2-)  So, 
the  power  of  a  visiter  must  be  regulated  according  to  the  statutes  of  the  col- 
lege, or  customs  of  the  place,(«)  "  and  it  must  be  collected  from  the  whole 
*purviewof  the  statutes,  considered  together,  what  power  the  founder  r-*5gg-j 
meant  to  give  to  the  visiter. '"(6)  '- 

A  visiter  has  a  general  authority  to  inspect  that  the  college,  &c.  be  gov- 
erned according  to  the  statutes  of  the  founder,(c)  and  may  make  visitation 
for  redress  of  grievances  ;(c)  so,  to  proceed  upon  a  grievance  done  in  the 
time  of  his  predecessor,  R.  v.  All  Souls  College,  &c.,(f/)  in  which  case  it 
was  decided  that  the  visiter  can  admit,  as  well  as  oust  a  fellow ;  but  in  R. 
V.  St.  John's  College,  &c.,(e)  it  was  held  that  the  visiter  has  no  power  to 
refuse  a  nominee  to  a  vacant  fellowship,  for  until  he  is  of  the  foundation  the 
visiter  has  no  jurisdiction  over  him,  and  in  this  case  it  was  added,  "  The 
visiter  shall  determine  all  that  relates  to  persons  that  are  of  the  foundation  ; 
but  here  is  a  collateral  interest  in  the  city  of  Bristol,  they  are  no  part  of  the 
college,  and  the  visiter  has  no  power  before  a  person,  is  made  a  member  ;" 
so,  in  R.  V.  Windham,(/)  it  was  held  that  a  visiter  could  only  decide  pri- 
vate disputes  between  the  members  of  a  college,  &c.,  but  not  suits  by  a 
stranger  against  the  body.(/) 

But  the  power  of  a  visiter  extends  to  all  new  fellowships  and  scholarships 
engrafted  on  the  old  foundation,  unless  there  be  any  particular  exception  by 
the  terms  of  the  new  foundation. (^) 

(s)  Bentlcy  v.  Ely  (Bp.),  2  Str.  913  ;  S.  C,  Fitzg.  303. 

(0  Attorney-General  v.  Talbot,  3  Atk.  662. 

(ii)  Ex  parte  Kirkby  Ravensworth  Hospital,  15  Ves.  305. 

\x)  R.  V.  Master,  &c.  of  Catherine  Hall,  4  T.  R.  233  ;  Ex  parte  Wrangham,  2  Ves.  jun. 
609.  (w)  1  Wooddes.  474. 

(2)  R.  V.  Chester  (Bp.),  1  Wils.  206 ;  S.  C,  1  Bl.  22. 

(fl)  2  Avl.  Hist.  Oxf.  81.  {!>)  Per  Ld.  Mansfield,  I  Burr.  200. 

(c)  Phillips  V.  Bury,  4  Mod.  110.  (rf)  Skinn.  13. 

(e)  4  .Mod.  233 ;  S.  C,  Skinn.  369  ;  Comb.  279.  (/)  Cowp.  378. 

(g-)  St.  John's  College  v.  Toddington,  1  Burr.  202,  203,  recognizing  Attorney -General 
V.  Talbot,  3  Atk.  662. 


392       crabb's  law  of  real  property. 

723.  A  bishop,  as  visiter  of  a  dean  and  chapel,  seems  to  have  no  jurisdic- 
tion to  determine  between  the  members  on  the  subject  of  their  corporate  pro- 
perty, for  this  is  held  to  be  a  great  question  ;(/i)  but  it  is  settled  that  where 
the  dispute  is  between  the  body  and  the  executors  or  administrators  of  a 
deceased  member  he  has  no  jurisdiction  in  the  matter  ;(/t)  so,  it  is  clear  that 

jj^  -,  he  cannot  by  virtue  of  such  *power  fill  up  a  vacancy  in  the  stalls 
L  -'of  the  cathedral  by  lapse,  such  an  office  being  a  freehold  ;(z)  and 
whether  he  can,  as  visiter,  even  make  a  temporary  election  to  such  stalls  is 
not  settled. (i)  So,  where  an  estate  is  in  the  college,  that  is,  in  the  whole 
body,  and  they  are  to  act  in  a  trust,  the  visiter  cannot  meddle  in  a  matter 
which  is  the  subject  of  such  trust  ;(A')  but  subsequent  benefactions  may  be 
put  under  the  power  of  the  visiter  or  not,  at  the  will  of  the  donor,(A:)  and  he 
may  prescribe  the  manner  in  which  the  visiter  shall  exercise  his  power  ;(^) 
so,  though  a  general  visiter  has  incidental  power,  yet  the  founder  may  res- 
train him  as  to  particular  instances,  as  where  the  Crown  reserved  to  itself  the 
right  of  making  statutes;  in  that  case,  the  altering  of  statutes  is  excepted 
from  the  visiter's  power,  St.  John's  College  v.  Toddington  ;(?«)  and  in  this 
case  it  is  said,  "  Where  a  body  of  statutes  has  been  given  by  the  founder  I 
should  doubt  extremely  whether  a  visiter  can  alter  those  statutes  or  give  new 
laws,  whatever  may  hav^e  been  the  notion  in  former  times. "(n)  See  further 
infra,  §  724. 

c.  How  far  a  Visiter'' s  Power  may  he  controlled. 

724.  If  a  visiter  gives  sentence  as  to  what  comes  within  his  jurisdiction, 
it  shall  be  definitive,(l)  for  no  appeal  lies  to  the  queen,  or  elsewhere  ;(<?) 
and,  therefore,  if  his  sentence  or  deprivation  be  shewn  in  pleading,  it  is  not 
necessary  to  say  for  what  cause  it  was ;(;?)  so,  the  queen's  courts  will  not 
anticipate  the  judgment  of  a  visiter,  or  take  away  his  jurisdiction,  if  the  case 
in  which  they  are  called  upon  to  interfere  appears  to  be  within  the  scope  of 
the  general  visitatorial  power  ;(7)  so,  his  sentence  shall  not  be  examined  in 
r*Pi-'Ol  ^  collateral  *action,  Phillips  v.  Bury,(r)  which  judgment  was  re- 
L  -^  versed  in  Parliament,(?')  and  it  is  the  same  in  the  case  of  a  temporal 
as  a  spiritual  corporation  ;(/•)  so,  a  mandamus  does  not  lie  to  restore  a  person 
to  a  fellowship  of  which  he  is  deprived  by  a  visiter  ;(s)  and  it  has  never  been 
determined  whether  a  mandamus  lies  to  a  visiter ;(/)  and  in  a  return  to  a  man- 
damus directed  to  a  college,  it  is  sufficient  to  state  in  general  terms,  that  such 
a  person  is  visiter,  for  as  visiter  he  is  empowered  to  determine  all  matters 

Qi)  R.  V.  Epis.  Dunelm.,  1  Burr.  567.         (t;  Chichester  (Bp.)  v.  Harwood,  1  T.  R.  630. 

{k)  Green  v.  Rutherford,  1  Vez.  46. 

(/)  St.  John's  College,  Cainbridn-e,  v.  Toddington,  1  Burr.  158. 

(w)  1  Burr.  201.  («)  Per  Ld.  Mansfield,  St.  John's  College,  Cambridge,  sup. 

(o)  Dy.  209  a;  Applcford's  case,  1  Mod.  82;  S.  C,  Carth.  92;  1  Lev.  23,  63  ;  Phillips 
V.  Bury,  4  Mod.  112 ;  R.  v.  Episc.  Eliens.,  5  T.  R.  475. 

(/O  4  Mod.  124.  (7)  Attorney-General  v.  Talbot,  3  Atk.  674. 

(')  4  Mod.  113,  per  Holt,  C.  J. ;  sed  contra.,  three  judges. 

(s)  Mr.  Parkinson's  case,  3  Mod.  265 ;  S.  C,  Comb.  143;  S.  C,  Carth.  92;  S.  C,  I 
Show.  P.  C.  74  ;  S.  C,  1  Holt,  143.  (0  1  Wils.  266 ;  1  Bl.  52,  71,  82. 


(1)  So  in  all  cases  where  by  the  charter  a  judicial  tribunal  is  created — fur  it  is  one  of 
the  party's  own  selection.     Black  v.  Vandyke,  2  Whart.  313. 


FRANCHISES.  -•  393 

that  come  before  him  as  grievances,  unless  he  be  particularly  restrained  by 
the  statutes  ;(m)  but  if  he  who  is  no  visiter  attempts  a  visitation,  a  prohibi- 
tion will  lie;(.r)  so,  if  a  visitor  should  assume  the  power  of  making  new 
statutes,  the  Court  of  Q..  B.  would  restrain ;(?/)  so,  if  the  statutes  of  a  col- 
lege give  to  the  same  person  who  is  visiter  the  power  of  appointing  to  an 
office  one  out  of  two  persons  returned  to  him  by  the  college,  he  has  that 
appointment  not  as  visitor,  but  by  virtue  of  such  power,  and  therefore  must 
make  choice  of  one  of  the  persons  returned  to  him  ;  and  if  he  assume  the 
appointment  of  any  other  person,  the  Court  of  Gl.  B.  will  interfere  ;{z'j  and 
so  if  the  visiter  be  a  party,  therefore,  where  a  mandamus  was  directed  to 
the  Bishop  of  Chester,  as  Warden  of  Manchester  College,  to  admit  a  chap- 
lain, and  he  made  return  that  he  was  visiter  of  the  society,  held,  that  though 
a  mandamus  would  not  lie  where  there  was  a  visiter  free  from  objection, 
yet  here  the  two  offices  being  in  the  same  person,  there  was  a  temporary 
suspension,  and  the  Q,.  B.  must  exert  its  authority ;(«)  so,  where  a  visiter 
in  his  citation  of  a  party  to  answer  articles  changed  to  be  violations  of  the 
statutes  did  not  set  forth  his  genuine  authority,  the  Court  of  Q,.  B.  granted 
a  prohibition  ;  but  the  House  of  Lords,  on  a  writ  of  error,  *reversed  r-^f-f-in 
the  former  judgment,  but  as  to  some  of  the  articles  confirmed  the  pro-  L  J 
hibition,  and  as  to  others  allowed  the  bishop  to  proceed. (6) 

725.  It  is  now  settled  where  there  is  no  question  in  whom  the  right  of 
visitation  is  vested,  and  a  visiter  refuses  to  hear  an  appeal,  the  Court  of 
dueen's  Bench  will  compel  him  by  mandamus  to  exercise  his  visitatorial 
power,  but  it  will  not  compel  him  to  give  a  particular  decision  upon  the 
merits  or  control  his  judgment,  and  the  visiter  is  not  obliged  to  hear  the 
party  personally,  or  to  receive  parol  evidence,  it  is  sufficient  if  he  receives 
the  grounds  of  the  appeal  and  gives  an  answer  to  them  in  writing  ;(c)  and 
in  R.  V.  Bland, (<Z)  it  is  said  that  the  bare  averment  of  there  being  a  visiter 
is  not  sufficient  to  exclude  the  jurisdiction,  but  the  extent  of  his  authority 
must  appear,  and  the  Court  must  be  satisfied  that  he  can  do  complete  justice, 
otherwise  a  mandamus  will  be  issued ;  but  as  to  the  contrary  decisions  on 
this  point,  see  Skinn.  13  ;  also  R.  v.  Ely  (Bishop), (e)  and  ante,  §  724  ; 
and  where  the  visiter  has  actually  executed  a  sentence  of  expulsion,  though 
he  may  appear  to  have  exceeded  his  jurisdiction,  the  Court  will  not  grant  a 
mandamus  to  restore  the  party  expelled, (/)  but  a  party  expelled  from  his 
freehold  may  have  a  remedy  by  ejectment ;(y)  so,  when  the  visiter  has 
pronounced  a  sentence,  which,  by  the  statutes  of  the  college,  a  particular 
officer  is  to  put  into  execution,  the  Court  will  not  compel  that  particular 
officer  by  mandamus  to  do  his  duty,  because  tbat  would  be  to  interfere  with 
the  privilege  of  the  visiter,  who  has  power  to  compel  the  proper  person  to 
execute  the  sentence  ;  but  it  seems  doubtful  whether,  if  the  A'isiter  himself 

(!/)  R.  V.  Alsop,  2  Show.  170.  {x)  4  Mod.  110. 

(y)  R.  V.  Windham,  Cowp.  378  ;  see  also  1  Vez.  473. 

(=)  R.  V.  El.  Episc.  2  T.  R.  290.  (o)  R.  v.  Episc.  Ccstr.,  2  Stra.  797. 

(6)  Bcntlcy  v.  Ely,  (Bp.)  2  Str.  912 ;  S.  C,  Fitzg.  107, 305 ;  S.  C,  in  error,  4  B.  P.  C.  41 . 
(r)  Pliillips  V.  Bury,  2  T.  R.  34G,  n.;  R.  v.  Lincoln,  (Bp.)  2  T.  R.  333  ;  R.  v.  Worces- 
ter, (Bp.)  4  M.  &  S.  415.  ((/)  Cited  1  Vez.  470. 
(ci  1  Wils.  266  ;  S.  C,  1  Bl.  52. 
(/)  R.  V.  Chester,  (Bp.)  1  Wils.  209  ;  S.  C,  1  BI.  25,  58. 


394  crabb's  law  of  real  property. 

^       -,  refuse  to  compel  the  execution  of  the  sentence,  the  *Court  will  grant 
L       "^J  a  mandamus  directed  to  him  for  that  purpose. (/) 

726,  Where  the  public  laws  of  the  land  are  violated,  the  Court  of  Glueen's 
Bench  will  interfere,  for  a  visiter  has  no  authority  to  determine  matters 
against  the  statutes  of  the  realm,  for  he  is  a  private  judge  who  is  to  deter- 
mine only  offences  against  the  statutes  of  the  college  where  he  is  visiter. 
Case  of  St.  John's  College,  Cambridge, (g-)  which  was  a  case  of  neglect  to 
take  the  required  oaths. 

If  the  performance  of  a  trust  is  to  be  decreed,  a  court  of  equity  must  be 
resorted  to,  for  a  visiter  is  incompetent  to  do  complete  justice,  as  Avhere  a 
rectory,  not  the  founder's  property,  was  given  in  special  trust,  and  this  trust 
was  limited  by  rules  differing  from  and  in  some  parts  contrary  to  the  statutes, 
held,  that  the  visiter,  who  was  bound  to  judge  only  according  the  statutes, 
could  not  give  a  remedy  on  this  trust,  but  the  college  was  obliged  to  apply 
to  the  Court  of  Chancery  ;(/i)  and  it  cannot  differ  the  case,  that  the  corpora- 
tion of  the  college  happened  to  be  the  trustees,  for  suppose  it  had  been  on 
trust  to  present  a  member  of  another,  the  visiter  of  this  college  could  have 
no  power  over  it;(i)  so,  if  a  college  agree  with  a  stranger  to  grant  him  a 
lease,  and  refuse  to  perform  the  agreement,  the  remedy  is  by  bill  in  equity 
for  specifie  performance,  and  not  by  appeal  to  the  visiter.(/c) 

So,  with  regard  to  the  revenue  of  a  charity,  where  there  is  a  visitor  who 
is  clothed  with  a  trust  for  the  management  of  the  same,  the  Court  of  Chan- 
cery has  jurisdiction  to  compel  a  due  application  thereof ;(/)  particularly 
in  cases  of  alleged  breach  of  trust,  a  petition  signed  and  allowed  by  the 
r*^7'i1  Attorney-General  *may,  under  the  52  G.  3,  c.  JO,  (see  Dig.  P.  ii. 
L  J  tit.  Charities)  be  presented  to  the  Lord  Chancellor,  who  is  to  hear 
the  same  and  make  order  thereon  ;(?yi)  but  the  jurisdiction  under  this  act  is 
discretionary,(n)  and  being  limited  to  questions  of  abuse  of  trust,  as  between 
trustees  and  the  objects  of  the  charity,  is  not  applicable  to  an  adverse  claim 
to  land,  as  having  formerly  belonged  to  the  charity. (o) 

7.  How  Corporations  may  be  dissolved. 

727.  A  corporation  maj;-  be  dissolved  in  three  ways,  that  is,  either  by 
abuser  or  misuser,  and  thereby  a  forfeiture  ;(;;)  by  surrender ;((/)  or  by  the 
death  of  all  its  members. (r) 

As  to  the  first  cause  of  dissolution,  since  all  franchises  flow  from  the 
bounty  of  the  Crown,  there  is  a  tacit  or  implied  condition  annexed  to  such 

( f)  Dr.  Walker's  case,  Ca.  temp.  Hardw.  212  ;  R.  v.  Episc.  Eliens.,  Andr.  176. 
(^)  4  Mod.  233.  (A)  Green  v.  liuthcrforth,  1  Vez.  462,  473. 

(i)  Id.  474.  {k)  R,  V.  Windham,  Cowp.  378. 

(Z)  Attorney-General  v.  Governors  of  the  Foundhng  Hospital,  2  Ves.  jun.  42;  Attorney. 
General  v.  Dixie,  13  Ves.  519. 

(?«)  Berkliampstead  Free  Sclicol,  ex  parte,  2  V.  &  B.  134. 

{n)  3  V.  &  B.  11.  (o)  Ex  parte  Recs,  3  V.  &  B.  10. 

ip)  2  Inst.  222 ;  Sir  James  Smith's  case,  4  Mod.  27. 

((/)  Palmer  v.  Butler,  1  Salk.  191. 

(r)  Colchester  (Mayor,  &c.)  v.  Seabcr,  3  Burr.  18G6. 


FRANCHISES.  395 

grants,  which,  if  broken,  forfeits  the  whole  franchise,(l)  as  if  a  corporation 
should  impose  new  taxes,  which  is  contrary  to  laAV,(s)  City  of  London 
case  ;(/)  see  also  Smyth's  case  ;(?/)  in  this  last  case  it  was  held,  that  though 
a  corporation  may  be  forfeited,  yet  that  the  proceedings  and  judgment 
(which  was  never  recorded)  in  the  quo  warranto  against  the  city  did  not 
dissolve  the  body  politic,  or  make  their  subsequent  acts  void.  In  R.  v. 
Amery,(x)  a  judsfment  against  a  corporation  quousqiie,  &c.,  in  default  of 
appearance,  was  held  to  operate  as  a  final  judgment  to  dissolve  the  corpo- 
ration, if  they  did  not  appear  in  the  same  term,  or  the  next  at  furthest,  but 
this  judgment  was  afterwards  reversed  in  error.(a')  By  the  1  &  2  W.  & 
M.  c.  8,  ss.  1,  3,  judgment  against  the  City  of  London  in  quo  warranto 
was  declared  illegal  and  void,  *and  the  franchises  of  the  City  are  pr-^n 
preserved  from  forfeiture  for  any  cause  Avhatever.  •- 

The  debts  of  a  corporation  either  to  or  from  it  are  totally  extinguished  by 
its  dissolution  ;  but  where  a  new  charter  is  granted,  this  revives  the  rights 
and  liabilities  of  the  old  corporation, (?/) 

728.  As  to  a  surrender,  although  a  corporation  may  be  dissolved  by  sur- 
rendering the  charter,(2)  yet  the  surrender  of  an  old  charter  is  void  for  want 
of  enrolment, (z)  and  a  charter  granted  on  a  void  surrender  is  void.  Piper  v. 
Dennis  ;(a)  see  also  R.  v.  Osbourne,(6)  where  this  point  is  fully  recognized. 
Though  a  dean  and  chapter  have  surrendered  all  their  possessions  to  the 
queen,  yet  their  corporation  continues,  and  they  remain  a  chapter  of  the 
bishop  to  assist  him  in  spiritual  matters. (c) 

As  to  the  dissolution  of  a  corporation  by  the  death  of  parties,  if  all  the 
members  of  an  aggregate  corporation  die,  the  body  politic  is  dissolved  ;(c/) 
but  if  the  king  make  a  corporation,  consisting  of  twelve  men,  to  continue 
always  in  succession,  and  when  one  of  them  dies,  the  others  choose  one  in 
his  place,  held,  that  if  three  or  four  of  them  died,  yet  all  acts  done  by  the 
rest  shall  be  sufficient  ;(e)  so,  if  any  corporation  aggregate,  as  mayor  and 
commonalty,  or  dean  and  chapter,  make  a  feofTment  and  letter  of  attorney  to 
deliver  seisin,  this  authority  does  not  determine  by  the  death  of  the  mayor 
or  dean,  but  the  attorney  may  well  execute  the  power  after  their  death, 

{s)  20  E.  4,  pi.  5  ;  2  Irrst.  222.  (0  Pollcxf.  70. 

(u)  4  Mod.  52  ;  S.  C,  1  Show.  280.  (x)  2  T.  R.  515. 

(y)  Colchester  (Mayor,  &.c.)  v.  Seaber,  3  Burr.  18G6. 

(s)  Butler  v.  Palmer,  1  Salk.  2^(2.  (a)  12  Mod.  253. 

{h)  4  East,  327.  (c)  3  Co.  75,  b,  (rf)  1  Roll.  Abr.  514. 

(e)  Case  of  Sutton's  Hospital,  10  Co.  30  b. 


(1)  Terrel  v.  Taylor,  9  Craneh,  43.  That  dissolution  by  forfeiture,  &c.,  can  only  be 
taken  advantage  of  by  judgment  in  a  proceeding:  by  the  Commonwealth  is  uniformly 
recognized,  for  the  state  may  waive  the  right.  2  Kent  Com.  312-13-14,  and  cases  cited  in 
the  notes  there.  Enfield  v.  Connecticut,  7  Conn.  45,  46.  The  Banks  v.  Poiteaux,  3  Rand. 
136.     Lehigh  v.  Lehigh,  4  Raw.  9. 

The  contrary  doctrine  advanced  in  Slee  v.  Bloom,  19  Johns.  475,  is  confined  to  the  par- 
ticular question  then  before  the  court,  viz.,  tliat  the  corporation  niiglil  be  considered  so  far 
dissolved  by  insolvency  as  to  give  a  right  of  action  against  the  individual  members.  Bank 
of  Niagara  v.  Johnson,  8  Wend.  654. 

(2)  Mumnia  v.  Potomac  Co.,  8  Pet.  287  ;  and  this  surrender  must  have  been  accepted 
by  the  proper  authority.  Enfield  v.  Connecticut,  7  Conn.  45-6.  Revere  v.  Boston,  15  Pick. 
359-60. 


396  crabb'slavv    of    real    property. 

because  the  letter  of  attornej^  is  an  authority  from  the  body  aggregate, 
which  subsists  after  the  death  of  the  mayor  or  dean;  sed  secus  if  the 
jj.  -,  mayor  or  dean  be  named  by  their  own  private  names,  and  *die  or  be 
L        -^  removed  before  livery,  livery  after  seems  not  good.(y) 

Where  a  corporation  consists  of  several  distinct  integral  parts,  if  one  of 
those  parts  become  extinct,  whether  by  the  death  of  the  persons  of  whom  it 
is  composed,  or  by  any  other  means,  it  seems  to  have  been  doubted  in  Col- 
chester (Mayor,  &c.)  v.  Seaber,(g-)  but  was  settled  in  R.  v.  Passmore,(A) 
that  when  an  integral  part  of  a  corporation  is  gone,  and  the  corporation  has 
no  power  of  restoring  it,  or  of  domg  any  corporate  act,  the  corporation  is 
so  far  dissolved(n  that  the  Crown  may  grant  a  new  charter  to  a  diflerent 
set  of  men. 

If  lands  are  given  to  a  corporation  which  is  afterwards  dissolved,  the 
donor  shall  have  the  lands  again,  for  the  law  annexes  such  a  condition  in 
every  grant  to  a  body  politic  ;(i)(2)  but  in  Hal.  MSS.,  20  Ja.  C.  B.,  (citing 
21  E.  4.  1  ;  21  H.  7.  9  ;  also  Johnson  v.  Morris,)  it  is  said  that  the  lands 
shall  escheat ;  and  the  case  of  Johnson  v.  Norway, (A-)  probably  the  same 
case  as  that  cited  by  Lord  Hale,  is  also  against  the  donor,  but  it  is  not  there 
said  that  the  judges  finally  decided  the  point,  see  also  contra,  Southwell  v. 
Wade,(Z)  wherein  is  my  Lord  Coke's  judgment.  A  debt  due  to  a  corpora- 
tion still  remains,  though  their  name  is  changed  by  a  new  charter,(?7i)  see 
further  on  this  point,  ante,  §  699. 


[*576]         *ii.  '^0^  jFiMuchiscs  m«in  ^c  claimcty. 

§  729.  Franchises  derived  from  tlic  Crown.         729.  I\Iay  bn  claimed  by  Charter. 

Construction  of  Charter. 


§  729.  All  franchises  are  derived  from  the  Crown,  and  ought  to  be  claimed 
by  charter  or  by  prescription,  which  supposes  a  grant  ;(n)  for  whatever  may 
be  claimed  without  matter  of  record,  may  be  claimed  by  prescription, (o)  as 
the  privilege  to  be  a  county  palatine,  to  hold  a  court-leet,  &c.,  see  ante,  § 
623  et  seq. ;  but  franchises  and  liberties,  which  cannot  be  seized  before  the 
cause  of  forfeiture  appears  upon  record,  cannot  be  claimed  by  prescription, 
as  to  have  fugitives'  goods,  conusance  of  pleas,  and  deodands,  see  ante,  §§ 
675,  676. 

(/)  1  Inst.  52,  b. ;  2  Roll.  Abr.  12.  (s)  3  Burr.  1866. 

(/>)  3  T.  R.  199.  (7)  1  Inst.  13,  b.;  Moor,  283;  Godb.  211.' 

(k)  Winch,  37.  (Z)  1  Roll.  Abr.  d61.  (w)  3  Lev.  238. 

(n)  2  Inst.  281.496;  9  Co.  27  b.  (o)  1  Inst.  114. 

(1)  Phillipps  V.  Wickham,  1  Paig.  Ch.  R.  590.  Lehigh  v.  Lehigh,  4  Raw.  9.  Rose  v. 
The  Turnpike  Co.  3  W.  46. 

(2)  It  is  said  in  Mamma  v.  Potomac  Co.  8  Pet.  286,  tliat  on  a  surrender  the  property 
held  in  trust  for  the  corporation,  or  which  has  not  passed  into  the  hands  of  bona  fide  pur- 
chasers, would  remain  subject  to  its  engagements.  But  it  seems  this  rule  would  not  pre- 
vail in  case  of  dissolution  by  judgment  for  forfeiture.    Bank  v.  The  State,  1  Black,  263. 


[*577] 


FRANCHISES.  397 

Franchises  which  do  not  He  in  prescription,  but  are  only  allowable  by- 
charter,  if  the  grant  was  before  time  of  memory,  may  be  claimed  by  charter 
of  confirmation  or  allowance  in  Eyre,  or  before  the  justices  in  Gl.  B.,  C. 
P.,  or  Exchq,,  without  shewing  the  original  grant, (;>)  and  also  without  such 
confirmation  or  allowance  ;(5')  and  an  allowance  in  Eyre  was  held  peremp- 
tory to  the  king,(r)  but  not  in  the  Q,.  B.  if  the  grant  afterwards  appear  to 
be  illegal  ;(?•)  and  in  Biddulph  v.  AtherCs)  it  was  held,  that  allowance  in 
Eyre  is  not  conclusive  evidence  against  third  persons,  therefore,  where  the 
plaintiff  proved  that  the  lords  of  the  manor  of  Lancing  had  taken  and 
enjoyed  wreck  for  ninety-two  years,  held,  that  two  allowances  in  Eyre  and 
a  judgment  in  trespass  400  years  since  are  not  conclusive  evidence  against 
usage  for  that  time;  and  it  was  said  in  this  case,  "  The  present  records  were 
no  more  conclusive  evidence  than  an  inquisition  *post  morte?7i, 
or  a  verdict  (in  many  cases)  touching  the  same  matter,  which  is 
often  res  inter  alios  acta,  as  in  the  action  of  trespass  ;  it  might,  perhaps,  be 
brought  by  the  person  then  in  possession  against  persons  who  were  mere 
wrongdoers  for  anything  that  appears  ;  in  pleading  an  allowance  in  Eyre, 
the  true  way  is  to  allege  an  immemorial  usage,  and  then  also  to  produce  the 
allowance  in  B.  R.  or  in  Eyre."  (t^ 

730.  An  ancient  charter,  if  the  words  are  general  or  obscure,  shall  be 
construed  according  to  ancient  allowance, (?<)  or  according  to  the  import  of 
the  words  when  the  charter  was  made,  and  subsequent  usage ;  but  if  the 
charters  were  granted  within  time  of  memory,  then  they  are  pleadable 
without  shewing  any  allowance. (a?)  By  the  3  (or  3  &  4)  Ed.  6,  c.  4,  and 
13  El.  c.  6,  if  the  charter  be  lost,  showing  an  exemphfication  or  constat  of 
the  roll  is  sufficient. (y) 

Of  franchises  which  may  be  claimed  by  prescription,  as  wreck,  waif, 
stray,  &c.,  as  they  may  be  originally  claimed  by  usage,  which  is  a  matter 
in  pais,  so  usage  may  support  them  without  the  aid  of  any  record  either  of 
creation,  allowance,  or  confirmation. (rj 


III.  I^oto  iFraucIu'scs  mag  te  lost  or  tJcstrogftr. 

§  731,  Merger  of  Francliises  in  the  Crown.    I      §  732.  Forfeiture  of  Franchisea. 
Revivor  of  Franchises,  I  Surrender  of  Franchises. 


§  731.  If  Franchises  and  liberties  are  granted  by  the  queen,  which  were 
before  in  esse,  and  afterwards  by  escheat  surrender,  or  otherwise  come  back 
to  the  Crown,  they  are  *reunited  to  and  merge  in  the  Crown,  and  r^^^Q-, 
the  queen  has  them  in  jure  coronas  as  before,  such  as  fugitives'  ^         -^ 

(p)  2  Inst.  231 ;  Case  of  the  Ahbot  of  Strata  ]\Iarcella,  9  Co.  28  a:  2  RoU.  Abr.  201. 
(9)  2  Roll.  Abr.  200  ;  W.  Jo.  284. 
(r)  2  Roll.  201.  (s)  2  Wils.  23. 

it)  Per  Holt,  C.  J.,  1  Salk.  184,  cited  and  reco<rnized  in  Biddulph  v.  Ather,  2  Wils.  23. 
(u)  2  Inst.  232  ;  9  Co.  28  a.  {x)  9  Co.  28  a.  (y)  2  Inst.  232. 

{z)  Case  of  the  Abbot  of  Strata  Marcella,  9  Co.  23  a;  see  also  2  Inst.  231 ;  Kitch.  60  b 
DficaMBEB,  1846. — 26 


398  crabb's  law  of  real  property. 

goods,  deodands,  wreck,  waif,  estrays,  &c.,  within  such  possessions,  and  if 
the  wreck,  waif,  estrays,  &c.  were  appendant  before  to  possessions,  the 
appendency  is  extinct,  and  the  queen  is  seised  of  them  in  jure  coronse  ;(a) 
but  when  a  franchise  Avas  at  the  beginning  erected  and  created  by  the  king, 
and  was  not  before  parcel  of  any  such  flower  of  the  Crown,  there,  by  the 
accession  of  them  again  to  the  Crown,  it  is  not  extinct,  nor  the  appendancy 
of  it  severed  from  the  possessions  ;  as  if  a  fair,  market,  hundred,  leet,  park, 
warren,  and  the  hke,  are  appendants  to  manors,  or  in  gross,  and  afterwards 
comes  back  to  the  Crown,  it  remains  in  esse,  not  merged  in  the  Crown,  for 
it  was  at  first  newly  created  by  the  king,  and  was  not  in  esse  before,  and 
time  and  usuge  have  made  it  appendant, (6)  therefore,  where  a  lieutenant  of 
the  king's  chace  had  title  by  prescription  to  hunt  within  the  manor  of  S., 
as  in  the  purlieu  of  the  chace,  if  the  manor  came  to  the  king,  and  after- 
wards was  regranted,  the  liberty  to  hunt  there  was  not  extinct, (c)  yet  it 
seems  doubtful  whether  the  grant  of  a  hundred  since  the  14  E.  3,  c.  9,  be 
good,(rf)  at  least  it  cannot  be  good  unless  where  the  hundred  had  been 
granted  in  fee  before  that  statute  ;(e)  for  ancient  hundreds,  which  were 
united  to  the  counties  by  the  2  Ed.  3,  c.  12,  could  not  afterwards  be  granted 
by  the  king,  and  those  which  Avere  excepted  in  that  statute  as  being  granted 
in  fee,  when  they  came  again  to  the  Crown,  could  not  be  regranted  because 
they  were  merged  in  the  Crown. (c) 

But  all  such  franchises  as  become  merged  in  the  Crown,  being  the 
ancient  revenues  of  the  Crown,  may  become  revived  by  Act  of  Parliament, 
r*K7Q"i  ^^  ^^^  liberties  annexed  to  the  ^possessions  of  the  abbeys  were  re- 
L  J  vived  by  the  32  H.  8,  c.  24 ;  but  those  which  are  not  extinguished 
by  a  reunion  to  the  Crown  do  not  require  to  be  revived ;(y)  therefore, 
the  king  granted  bona  felonvm,  &c.,  to  an  abbot,  and  his  possessions  were 
given  to  the  king  by  the  27  H.  8,  or  32  H.  8,  the  king  became  seised  of 
them  again  as  before. (/) 

732.  Franchises  may  also  be  lost  by  forfeiture.  Some  franchises  are 
lost  by  non-user,  as  a  fair,  market,  court,  or  such  like  liberties,  wherein  the 
subjects  have  an  interest  for  their  common  profit  or  common  justice,  these 
will  be  forfeited  by  disuse,  and  non-user  will  then  be  a  cause  of  seizing  the 
same,  but  the  non-user  of  parks  or  warrens,  or  such  hke,  which  are  to  the 
profit  only  or  pleasure  of  the  owner,  is  not  an}--  cause  of  their  forfeiture  ;(o-) 
so,  a  corporation  may  be  forfeited  by  a  breach  of  the  trust  reposed  in 
them  ;(/i)  see  further,  ante,  §  372 ;  also  as  to  forfeiture  generahy,  see  post, 
Title  to  Things  Real. 

A  franchise  may  also  be  lost  by  surrender,  as  where  a  corporation  sur- 
renders its  charter,  see  ante,  §  728  ;  as  to  usurpation  or  disturbance  of  a 
franchise,  see  post,  Injuries  to  Things  Real. 

(fl)  Case  of  the  Abbot  of  Strata  IMarcella,  9  Co.  25 ;  see  also  Plowd.  219  ;  Moor,  474 ; 
Palm.  78;  1  Andr.  87, 

(6)  lb. ;  see  also  Sir  John  Darcy's  case,  6  Ed.  3.  32,  43 ;  Ed.  3.  32  ;  and  other  authori- 
ties,  cit.  9  Co.  24  b  ;  also  Dy.  44,  pi.  32 ;  108,  nl.  30 ;  Ilcddy  v.  Wheelhouse,  Cro.  El.  591. 

(r)  Dy.  327  a,  pi.  3.  (-/)  R.  v.  Kingsmill,  3  Mod.  200. 

(c)  lb. ;  see  also  1  Vent.  399  ;  2  P.  Wms.  400.  (/")  9  Co.  25  a. 

(g-)  Cro.  Jac.  155.  [h)  W.  Jo.  283 ;  Skinn.  320  ;  4  Mod.  £8  ;  12  Mod.  18.  272. 


EOOK  IL 


THE  TENURES  BY  WHICH  THINGS  REAL  MAY  BE  HELD. 


*The  subject  of  Tenures  may  be  considered  under  the  following  pjifroQ-. 
heads : —  ^ 


Chap.  I. 

OF  THE  NATURE  OF  TENURES  IX  GENERAL. 

Chap.  II. 

MODERN    FREE    TENURES. 

Chap  III. 

COPYHOLDS   AND    BASE   TENURES. 


CHAPTER   L 


OF  THE  NATURE  OP  TENURES  IN  GENERAL. 


733.  Definition  of  the  Word  "Tenure." 

734.  Things  lying  in  Tenure. 
Tilings  lying  in  Grant. 
Distinction  of  different  Tenures. 
Knight's  Service,  &c. 
Tenures  in  Capite. 
Stat.  Quia  Emptorcs,  18  E.  1,  c.  1. 
Extent  of  the  Statute. 
Derivation  of  other  Tenures. 
Ancient  Demesne, 
Burgage  Tenure. 


735. 


736. 
737. 


§  737.  Gavelkind. 
Copyhold. 
Socage. 

738.  Quality  and  Quantity  of  the  Services. 
Free  and  base. 

Certain  and  uncertain. 
Lay  and  spiritual. 

739.  What  Tenures  are  still  remaining, 

or  otherwise. 
12  C.  2,  c.  24. 

740.  Application  of  the  Term  "  Tenure." 


§  733.  Under  the  word  "  tenure"  is  comprehended  every  kind  of  holding 
of  an  estate,  but  is  more  properly  applied  to  any  holding  which  is  coupled 
with  a  service,  derived  from  *the  feudal  law,  according  to  which  it  p^Koj-i 
became  a  maxim,  although  now  little  more  than  a  fiction,  that  all  L        -I 


400  crabb's  law  of   real  property. 

lands  were  held  either  mediately  or  immediately  of  the  queen,  by  some  ser- 
vice, whence  the  thing  holden  was  designated  by  the  name  of  a  "tene- 
ment," the  person  holding  by  that  of  "tenant,"  and  the  manner  of  holding 
by  that  of  "tenure." 

734.  Upon  this  principle  is  grounded  the  distinction  between  things 
lying  in  tenure,  and  those  lying  in  grant.  As  a  rule,  an  incorporeal  heredi- 
tament holden  of  a  subject  does  not  lie  in  tenure,  for  there  could  be  no 
tenure  without  some  service;  and  to  every  service,  except  that  which  is 
done  by  frankalmoigne,  distress  was  and  still  is  incident ;  but  as  there  is 
not  in  an  incorporeal  hereditament  any  thing  upon  which  the  lord  to 
whom  the  service  is  due  can  distrain,  in  case  the  service  be  not  per- 
formed, an  incorporeal  hereditament  is  said  not  to  lie  in  tenure  ;(a)  therefore, 
a  fair  does  not  lie  in  tenure,  because  the  grantor  has  no  remedy  by  distress 
for  the  service  reserved  in  the  grant  of  a  fair  ;(i)  so,  an  advowson  appen- 
dant to  a  manor  does  not  lie  in  tenure,  for  as  such  advowson  is  appen- 
dant to  the  whole  manor,  the  grantor  cannot  enter  and  make  distress  upon 
any  one  part  of  the  manor  for  the  service  reserved  ;(c)  but  an  incorporeal 
hereditament  holden  immediately  of  the  Crown  Hes  in  tenure,  for  the  queen 
has  by  her  prerogative  a  power  of  distraining  in  any  part  of  the  tenant's 
land,  for  the  services  reserved  in  the  grant  of  the  incorporeal  estate. (cZ) 

So,  in  some  cases,  even  an  incorporeal  hereditament  may  lie  in  tenure, 
although  it  be  holden  of  a  subject,  as  the  vesture  or  herbage  of  land,  for  a 
distress  may  be  upon  the  land  for  the  service  reserved  in  the  grant  of  the 
vesture  or  herbage  ;(e)  and  the  better  opinion  seems  to  be  that  an  advowson 
-,  in  gross  lies  in  tenure,  because  the  grantor  may  distrain  *upon  the 
L  -*  glebe,  if  any  beast  of  the  patron  be  there,  for  the  service  reserved  in 
the  grant  of  the  advowson  ;(/)  so,  a  remainder  and  reversion,  though  both 
incorporeal,  nevertheless  lie  in  tenure,  for  although  the  grantor  has  no 
remedy  for  the  service  reserved  during  the  continuance  of  the  particular 
estate,  yet  he  may,  as  soon  as  this  is  determined,  distrain  for  the  service, 
and  if  it  be  a  pecuniary  one,  for  the  arrear  thereof.(^) 

735.  Tenures  are  distinguished  primarily  in  reference  to  the  services 
coupled  with  them,  as  tenure  by  knight's  service,  tenure  by  escuage  or  ser- 
vice in  a  voyage  royal,  tenure  by  grand  or  petit  serjeanty,  tenure  by  corn- 
age,  that  is,  by  winding  a  horn,  and  tenure  by  castleguard,  that  is,  by 
defending  a  castle,  some  of  which  have  been  abolished  by  the  12  C.  2,  c. 
24,  and  others  have  been  suffered  to  remain. 

Some  tenures  are  so  named  from  the  person  of  whom  the  land  was  held, 
as  tenure  in  capite  where  the  holding  was  of  the  person  of  the  king,  and 
tenure  in  gross  where  the  holding  was  of  a  subject,  either  as  of  his  person 
or  as  of  an  honour  or  manor  of  which  he  was  seised.  Before  the  statute 
Quia  Emptores,  18  E.  1,  c.  1,  any  person  might  by  a  grant  of  land  have 
created  as  a  tenure  of  his  person,  or  as  of  his  honour  or  manor,  and  although 

(a)  Bro.  Ten.,  pi.  34,  75  ;  1  Inst.  47,  98,  142. 

{h)  Jewel's  case,  5  Co.  3.  (c)  Bro.  Ten.,  pi.  34 ;  1  Inst.  142. 144. 

{(l)  Id.,  pi.  18,  34 ;  1  Inst.  47.  (e)  1  Inst.  47. 

(/)  Bro.  Ten.,  pi.  4  ;  1  Inst.  144. 

(g)  Bro.  Distr.,  pi.  47;  Perk.  627;  1  Inst.  47,  144;  Capel's  case,  1  Co.  62. 


THE    NATURE    OF    TENURE  3.  401 

by  Magna  Charta,  c.  32,  a  man  could  not  alien  so  much  of  his  land  as  not 
to  leave  enough  to  answer  the  services  due  to  the  superior  lord,  yet  as  that 
statute  did  not  remedy  the  evil  then  complaimed  of,  it  is  provided  by  the  18 
E.  1,  c.  1,  that  if  any  tenant  should  alien  any  part  of  his  land  or  tenement 
in  fee,  the  ahenee  should  hold  the  part  so  aUened  immediately  of  the 
chief  lord  of  the  fee,  and  should  be  forthwith  charged  with  the  service 
for  so  much  as  pertained  to  the  said  lord  for  such  part  in  proportion  to  the 
whole  quantity  of  the  land.  Since  this  statute,  if  a  lord  conveyed  a  cus- 
tomary estate  to  the  *tenant,  he  could  not  reserve  to  himself  the  psfrj^o-i 
ancient  services,  for  by  reason  of  the  statute,  the  tenant  must  thence-  L  -J 
forth  hold  of  the  superior  lord,  and  not  of  the  grantor. (A) 

736.  As  this  statute,  although  made  after  the  Statute  de  Bonis,  is  con- 
fined to  lands  and  tenements,  of  which  the  fee  is  granted,  yet  if  a  gift  in  tail 
were  made,  the  donee  should  hold  of  the  donor  and  not  of  the  chief  lord ; 
for,  so  long  as  the  reversion  continued  in  him,  the  donee  must  hold  of  him, 
and  the  law  will  not  suffer  the  donee  to  hold  both  of  the  donor  and  of  the 
chief  lord;(i)  but  if  a  baron  seised  in  fee  of  an  inheritance  in  the  right  of 
his  feme,  made  a  gift  in  tail,  the  donee  should  not  hold  of  the  baron,  but  of 
the  lord  of  whom  the  feme  held,  because  the  baron  had  nothing  but  in  right 
of  the  feme. (A;) 

Notwithingstanding  this  statute  speaks  only  of  estates  in  fee  simple,  yet 
if  a  gift  was  made  to  A.  for  life  or  in  tail  with  remainder  to  B.  in  fee,  the 
tenant  for  life  or  in  tail  should  hold  of  the  chief  lord,  for  as  the  whole  fee  is 
departed  with  by  the  donor,  neither  of  the  donees  can  hold  of  the  donor,  and 
consequently  both  must  hold  of  the  chief  lord ;(/)  if  the  tenant  in  tail  had 
the  reversion  in  himself,  there,  although  the  two  estates  continued  distinct, 
yet  as  he  could  not  hold  of  himself,  the  tenure  of  the  estate  tail  was  sus- 
pended, and  he  was  tenant  to  the  lord  in  fee  ;(m)  so,  as  a  man  seised  of  two 
manors  might  before  this  statute  by  a  feoffment  in  fee,  so  he  may  now  by 
a  gift  in  tail,  convey  a  parcel  of  one  manor  and  a  parcel  of  another  to  be 
holden  of  himself  as  one  tenancy  of  the  same  service,  and  the  service  shall 
in  that  case  be  regardant  to  both  manors. (n) 

*737.  Some  tenures  derive  their  name  from  the  nature  of  the  r-#ro4--] 
land,  as  tenure  in  ancient  demesne,  that  is,  holding  lands  parcel  of  L  -' 
the  royal  demesne  ;  others  from  the  place  where  the  land  lies,  as  tenure  in 
burgage,  that  is,  a  holding  of  lands  or  tenements  in  a  borough ;  others  from 
a  particular  kind  of  service  as  tenure  in  gavelkind ;  others  from  the 
mode  of  creating  the  tenure,  as  tenure  by  copy,  that  is  by  copy  of  court- 
roll,  tenure  by  the  verge,  that  is,  from  the  ceremony  of  taking  the  verge  or 
little  rod,  as  the  symbol  of  taking  the  estate  ;  and  others  from  the  quality  of 
the  tenure,  as  tenure  in  villenage.  So,  if,  as  some  suppose,  socage  is  de- 
rived from  soc  free,  then  tenure  in  socage  is  as  much  as  free  tenure;  but  if, 

Qi)  Bradshaw  v.  Lawson,  4  T.  R.  443 ;  see  also  Rcay  v.  Huntington,  4  East,  271. 
(t)  Bro.  Ten.,  pi.  21,  37  ;  2  Inst,  505 ;  2  Roll.  Abr.  501. 
{k)  1  Inst.  23 ;  2  Inst.  502.  (0  2  Inst.  505. 

(m)  Bro.  Ten.  81,  107 ;  F.  N.  B.  143,  A. ;  Gilb.  Ten.  by  Watkins,  n,  42  ;  Vin.  Abr.  tit. 
Tenure,  (H.  a.)  pi.  12. 
(n)  2  Roll.  Abr.  499. 


402  crabb's  law  of  real  property. 

as  others  suppose,  it  is  derived  from  soc  a  plough,  then  it  is  as  much  as 
tenure  by  plough  service. (o) 

738.  Tenures  are  likcAvise  distinguished  according  to  the  quality  of  the 
service  into  free  or  base,  free  services  were  such  as  were  not  unbecoming  a 
soldier  or  freeman  to  perform,  as  to  serve  the  lord  in  the  wars  ;  base  ser- 
vices were  such  as  were  fit  only  for  peasants  to  perform,  as  to  plough  the 
lord's  land  and  the  hke.  The  services  might  also  be  certain  or  uncertain  ; 
certain  services,  whether  base  or  free,  were  such  as  were  stinted  in  quan- 
tity, and  could  not  be  extended,  as  to  pay  a  stated  annual  rent,  or  to  plough 
for  such  a  number  of  days.  The  uncertain  services  depended  on  contingen- 
cies, as  to  do  military  service  in  person,  or  pay  an  assessment  in  lieu  of  it, 
which  are  free  services,  or  to  do  whatever  the  lord  should  command,  which 
is  a  base  or  villein  service.  The  free  tenures  are  (or  were)  knight's  service, 
escuage,  grand  or  petty  serjeanty,  and  socage  tenure,  &c. ;  those  which 
were  originally  of  the  base  kind  are  tenure  in  ancient  demesne,  tenure  by 
copy,  and  by  the  verge,  and  tenure  in  villenage,  which  was  by  distinction  a 

-.  base  tenure.  All  the  above-mentioned  tenures  are  of  the  *lay  kind, 
L  J  but  the  tenure  in  frankalmoigne,  or  by  divine  service,  is  of  the 
spiritual  kind. 

739.  Of  these  different  tenures,  one,  namely,  tenure  in  villenage,  which 
was  another  name  for  slavery,  has  fallen  into  absolute  disuse,  and  those 
which  in  their  origin  were  also  base  have  long  ceased  to  be  so,  as  will  ap- 
pear more  fully  hereafter.  Of  the  free  tenures,  some,  as  tenure  by  knight's 
service,  escuage,  and  socage  in  capite,  have,  with  all  their  burthensome  inci- 
dents, as  homage,  wardship,  marriage,  and  relief,  &c.,  been  abolished  by  the 
12  C.  2,  c.  24,  which  provides  that  all  lands  held  of  his  Majesty  or  any 
other  person  should  be  turned  into  free  and  common  socage.  There  remain 
among  the  tenures  of  the  free  kind  which  demand  further  consideration,  only 
grand  and  petty  serjeantj',  socage  tenure,  tenure  in  burgage,  and  tenure  in 
gavelkind,  see  infra,  §  747  et  seq.  The  tenures  of  inferior  origin  that  are 
still  extant  are  copyhold  tenure,  customary  freehold,  and  tenure  in  ancient 
demesne,  with  some  variations  thereof,  see  infra,  §  765  et  seq. 

710.  On  the  feudal  principle  before  mentioned,  of  all  lands  being  holden 
of  the  queen,  estates  in  land,  though  unconnected  immediately  with  any 
service,  are  described  in  similar  terms  as  an  estate  in  fee  simple,  the  owner 
of  which,  though  it  is  the  highest  of  all  estates,  is  described  as  a  holder, 
namely,  tenant  in  fee  ;  so,  in  like  manner,  tenant  in  fee  tail,  for  life,  in 
doAver,  and  the  like  ;  and  the  obligations  arising  from  tenure  still  attach  to 
the  ownership  of  such  estates,  as  an  obligation  to  repair  highways  and 
bridges,  see  ante,  §  103  ;  so,  a  liability  to  be  assessed  to  the  sewers'  rate, 
§  115. 

(o)  Litt.,  chap.  5 ;  Somn.  Gavelk.  133 ;  Wriglit,  Ten.  142 ;  2  Coram.  80. 


SOCAGE    TENURE,    AND    ITS     INCIDENTS.  403 

*CH  AFTER   11.  [*586] 

SOCAGE,  AND  OTHER  MODERN  TENURES. 


Sect.  I. 
§  741.  Socage  tenure,  and  its  incidents. 

Sect.  II. 
§  747.  Grand  and  petty  serjeanty. 

Sect.  III. 
§  749.  Burgage  tenure. 

Sect.  IV, 
§  753.  Tenure  of  gavelkind. 

Sect.  V. 
§  761.  Tenure  of  frankalmoigne. 


As  the  tenure  of  all  lands  is  turned  into  free  and  common  socage  by  the 
12  C.  2,  c.  24,  except  grand  serjeanty,  and  some  few  others  therein  men- 
tioned, it  will  be  necessary  to  consider  the  properties  and  incidents  of  this 
tenure,  and  other  tenures  of  an  equally  free  nature,  as  grand  and  petty  ser- 
jeanty, burgage  tenure,  tenure  in  gavelkind,  and  frankalmoigne. 


*SECTI0N  I.  [  *587  ] 


SOCAGE  TENURE,  AND  ITS  INCIDENTS. 


§  741.  Fealty  incident  to  Socage  Tenure, 

742,  Aids. 
Relief, 
Primer  Seisin. 

743.  Wardship. 
Properties  of  Guardianship, 

Derived  from  Tenure. 

746.  Marriage 


§  743.  In  respect  of  Lands  by  Descent  only. 

744.  Who  not  to  be  Guardian, 
Not  an  Infant. 

745,  Accounting-  by  Guardian, 
Duration  of  Guardianship. 
Not  alienable. 
Extent  of  Guardian's  Power, 


§  741.  Free  and  common  socage  properly  denotes  a  tenure  by  any  cer- 
tain and  determinate  service,  by  which  it  was  mainly  distinguished  from 
knio-ht's  service.     The  incidents  of  socage  tenure  before  the  statute  were 


404  crabb's   law   or    real   property. 

fealty,  aids,  relief,  primer  seisin,  wardship,  marriage,  fines  for  alienation, 
and  escheats.  Fealty  was  the  oath  taken  by  the  tenant  which  served  as  a 
bond  between  him  and  the  lord.  This  oath,  which  is  not  taken  away  by  the 
statute,  may  be  required  by  every  lord  of  whom  tenements  are  holden  at  this 
day,  and  usually  draws  after  it  suit  of  court,  (a) 

742.  Aids  for  knighting  the  son,  and  marrpngthe  eldest  daughter,  were 
filed  as  to  their  amount  by  the  28  E.  1,  c.  36,  but  are  abolished  by  the  12 
C.  2,  c.  24. 

Relief,  which  was  a  fine  paid  to  the  lord  on  taking  up  the  estate  on  the 
death  of  the  last  tenant,  was  and  still  is  due  on  socage  tenure,  and  as  it  is  an 
incident  of  conmaon  right  to  this  tenure,  it  is  not  necessary  to  set  forth  a  title 
to  it  in  replevin. (6)  A  reUef  of  a  knight's  fee  was  5/.,  or  one-quarter  of  the 
supposed  value  of  the  land,  but  a  socage  relief  was  one  year's  rent  ;(c)  so,  a 
relief  in  knight's  service  was  only  payable  if  the  heir  was  of  full  age  at  the 
^_  death  of  *his  ancestor,  but  it  was  otherwise  wiih  a  socage  relief, 
L  ^  -'  which,  as  Littleton  says,  must  be  paid  presently,  or  the  lord  might 
distrain  for  the  same.((/) 

The  statute  reserves  the  relief  incident  to  socage  tenure,  and  therefore, 
•where  lands  in  fee  simple,  or  fee  tail,  are  holden  by  a  rent,  a  relief  is  due 
of  common  right  upon  the  death  of  the  tenant,  that  is,  when  the  same  is  in 
possession,  but  if  only  a  remainder  or  reversion,  expectant  upon  an  estette 
for  life,  descends  on  the  heir,  the  relief  is  not  leviable  until  after  the  death 
of  the  tenant  for  Hfe,  and  it  seems  doubtful  whether  it  be  payable  at  any 
tirae.(e)  "Where  the  tenure  is  by  fealty  only,  no  relief  is  due,(/)  and  see 
further,  post,  as  to  the  rights  of  the  lord,  §§  845  et  seq. 

Primer  seisin,  which  was  a  feudal  burthen  similar  to  the  relief,  was  inci- 
dent to  tenants  in  capite,  as  well  in  socage  tenure  as  in  knight's  service,  and 
is  in  both  cases  expressly  abolished  by  the  statute. 

743.  "Wardship  is  another  incident  common  to  the  tenure  in  chivalry  and 
to  socage  tenure  ;  it  was,  however,  very  different  in  its  nature  in  these  two 
tenures,  being  in  the  former  case  an  oppressive  burthen,  and  in  the  latter 
beneficial  for  the  infant. 

The  properties  of  this  species  of  guardianship  are  as  follow : — 
First — It  springs  hke  the  one  in  chivalry,  wholly  out  of  tenure,  therefore 
the  title  to  it  cannot  arise,  unless  the  infant  is  seised  of  lands  or  heredita- 
ments lying  in  tenure,  for  if  he  be  seised  of  a  rent  or  common  of  pasture  and 
other  hereditaments  not  lying  in  tenure,  then  he  may  choose  his  guar- 
dian, (o') 

Secondly — Like  guardianship  in  chivalry,  it  is  deemed  to  take  place  on 
a  descent  only,  and  not  where  the  infant  *comes  in  by  purchase, 
L  "^     J  although  this  was  at  one  time  doubted, (A)  see  further  Dig.  P.  iii.  tit. 
Guardian  and  Infant. 

(a)  Litt^  ss.  117  et  seq. ;  2  Coram.  So ;  Sulliv.  Lect  &8. 

(A)  Freeman  v.  Booth,  3  Ltv.  145.  (c)  1  Inst  76,  a ;  2  Comm.  86. 

(rf)  Litt.,  3.  127  ;  2  RoU.  Abr.  5 J  9. 

(e;  Keilw.  83  b,  94  a  ;  Kitch.  146,  b ;  Freeman  v.  Booth,  3  Lev.  145. 

(/)  1  Inst.  93,  a.  (g)  1  Inst.  68,  b  ;  Harg.  n.  (3). 

ih)  2  Mod-  176;  Vin.  Abr.  tit.  Guardian,  (L  1). 


! 


SOCAGE    TEKVRE,    AND    ITS    INCIDENTS.  405 

744.  Thirdh' — The  guardian  must  be  one  to  whom  the  inheritance  can 
by  no  possibihty  descend, (j)  therefore,  says  Lord  Coke,  the  elder  brother  of 
the  half  blood  shall  not  have  the  custody  of  the  land,  because  he  may  pos- 
sibly inherit.  (A')  If  there  are  two  or  more  in  equal  degree,  he  who  first 
gains  possession  of  the  heir  shall  have  the  custody  of  him,  unless  they  be 
uncles,  or  lineal  descendants  of  the  infant,  when  the  eldest  will  be  pre- 
ferred;(/)  but  where  an  infant  derives  lands  ex  parte  jmtenid  and  ex  parte 
maternd,  the  next  of  kin  on  either  side  seizing  the  infant  is  entitled  to  the 
custody  of  the  body  ;(7n)  but  the  next  of  blood  of  the  part  of  the  father  shall 
enter  into  the  lands  of  the  part  of  the  mother,  and  vice  versd.[m) 

If  the  person  entitled  to  be  guardian  is  himself  under  custody  of  a  g-uar- 
dian,  the  wardship  of  the  first  infant  entitles  the  guardian  to  the  custody  of 
the  second  infant,  and  he  is  said  to  be  guardian  per  cause  de  ward  i^n)  so, 
an  infant  not  in  the  custody  of  another  cannot  be  guardian  in  socag-e,  because 
no  writ  of  account  lies  against  an  infant,(o)  see  further.  Dig.  P.  iii.  tit. 
Guardian  and  Infant,  so,  for  the  same  reason,  an  idiot,  lunatic,  deaf  and 
dumb,  or  blind  person,  or  a  leper,  cannot  be  a  guardian. (j?) 

745.  In  the  fourth  place,  a  guardian  in  chivalry  was  not  obliged  to  account 
to  the  heir,  but  it  is  otherwise  with  a  *guardian  in  socage,  who  shall 

not  take  any  issues  or  profits  to  his  own  use,  but  only  to  the  use  and  L  J 
profit  of  the  heir.(y) 

Fifthly — Wardship  in  chivalry  continued  over  males  until  the  age  of 
twenty-one,  and  over  females  until  sixteen  ;  but  wardship  in  socage  con- 
tinues only  until  the  age  of  fourteen. (r) 

Sixthly — Guardianship  in  socage  being  wholly  for  the  benefit  of  the  infant, 
and  not  in  any  respect  for  the  guardian's  profit,  it  is  not  a  subject  of  aliena- 
tion, forfeiture,  or  succession,  as  wardship  in  chivalrj^  was.(s) 

So,  guardianship  in  socage  extends  not  only  to  the  person  and  socage 
estates,  but  also  to  hereditaments  not  lying  in  tenure,(f)  and  even  to  copy- 
hold estates  unless  there  is  a  special  custom  for  a  lord's  appointing  a  guardian 
of  them,(?/)  but  not  to  personalty. (?/) 

746.  There  remain  two  other  incidents  formerly'  belonging  to  this  tenure 
which  may  be  briefly  noticed,  as  they  no  longer  exist,  namely,  marriage, 
and  fines  for  alienation.  Marria£-e  of  the  ward  was  a  source  of  e^reat  profit 
to  the  guardian  in  chivair)-,  but  the  contrar}^  to  the  guardian  in  socasre,  for 
the  latter  was  bound  to  account  for  the  value  of  the  marriage  :(.r)  the  statute 
has,  however,  abofished  this  incident  to  tenure  in  both  cases,  so  likewise 

(0  Carell  v.  Cuddinorton,  Plowd.  296 :  1  Inst,  87,  b. 

(k)  1  Inst,  ST,  b. :  but  see  Swan  v.  Gateland.  Cro.  El.  82o  :  S.  C.  nom.  Swan  v.  Gater- 
land.  Moor,  635;  S.  C.  nom.  Swan's  ease,  O.v.  US;  2  Andr.  171 ;  2  Roll.  Abr.  40 ;  also 
T.  Jo.  17 ;  Carth.  137,  138;  9  Mod.  143. 

(l)  1  Inst.  SS.  a.  (Ml)  Carell  v.  Cuddinsrton,  Plowd.  295. 

(n)  Vau^b.  1S4  ;  5  Roll.  Abr.  35.  40.  (o)  7  E.  3.  46  :  16  E.  3.  53,  Account. 

(/))  Flet^  1.  1,  c.  10.  (9)  Litt,  sect  133 ;  1  Inst  SS,  b.;  Harg.,  n.  (11). 

(r)  Litt.  sect.  123 :  ]  lust,  78,  b. 

(s)  Carell  v.  Cuddington,  Plow.  293 ;  1  Inst  84,  b. ;  Vaueh.  181 :  but  see  F.  X.  B.  143, 
P.;  and  Harj.  Co.  Litt  88,  b.,  n.  (B). 

(/)  1  Inst  88,  a. 

(u)  Hutt.  17  ;  Es-leton's  case,  1  Roll.  Abr.  40;  Church  v,  Cndmore,  Lutw.  IISI. 

(r)  Litt,  sect  123. 


406  CRABB's    LA.W    OF    REAL    PROPERTY. 

fines  for  alienation  which  were  common  to  the  two  tenures  ;(i/)  but  it 
is  otherwise  with  escheats,  to  which  lands  of  socage  tenure  are  still 
incident. 


[  *591  ]  •SECTION  II. 

GRAND  AND  PETTY  SEKJEANTY. 

§  747.  Personal   Services   belong  to   these  I      747.  Special     Properties    belonging     to 
Tenures.  |  Grand  Scrjeauty. 

748.  Petty  Serjeanty. 

Homage  Auncestrell. 


§  747.  These  two  tenures  differ  from  all  others  that  have  ever  existed,  inas- 
much as  the  services  coupled  with  them  are  personal  services  to  be  performed 
in  relation  to  the  person  of  the  queen,  and  are  purely  honorary.  Grand 
serjeanty  consists  in  the  honorary  services  of  carrying  the  queen's  sword  or 
banner,  of  officiating  as  butler  or  carver,  &c.,  at  the  coronation,  or  of  being 
steward,  constable,  or  chamberlain  of  England,  and  the  like;(2:)  so,  when 
any  held  of  the  king  by  cornage,  that  is,  by  winding  a  horn  when  the  Scots 
or  any  enemy  came,  it  was  grand  serjeanty,  but  if  lands  were  held  of  any 
lord  by  such  tenure  it  was  knight's  service. (a) 

Lord  Coke  says  this  tenure  hath  seven  special  properties  : — 1.  To  be 
holden  of  the  queen  only.  2.  It  must  be  done  when  the  tenant  is  able,  in 
proper  person.  3.  This  service  is  certain  and  particular.  4.  The  relief 
due  in  respect  of  this  tenure  differeth  from  knight's  service.  5.  It  is  to 
be  done  within  the  realm.  6.  It  is  subject  to  nekhev  aid  pur /aire  Jils 
chevalier,  or  Jile  marier;  and  7.  It  payeth  no  escuage.(Z>) 

As  to  the  second  property  of  being  done  in  person,  that  necessarily 
admitted,  and  still  does  admit  of  exceptions,  for  in  an  early  case  it  was  held, 
that  where  a  citizen  of  London  held  lands  by  the  tenure  of  presenting  a 
towel  to  the  king  to  wash  his  hands  at  the  coronation,  he  was  admitted  to 
r*Piq9"i  perform  the  service  by  deputy,  he  not  being  of  quality  to  perform 
L-  "^-^  *this  high  and  honourable  service  ;(c)  and  it  seems  that  no  person 
under  the  degree  of  a  knight  could  be  admitted  ;(c)  and  as  a  woman  connot 
perform  the  office  in  person,  she  will  be  admitted  to  do  it  by  deputy  ;(c)  so, 
in  like  manner,  where  the  heir  is  under  age,  he  is  disquahfied  to  perform 
the  office  in  person. 

The  tenure  of  grand  serjeanty  is  expressly  retained  with  a  reservation  of 
all  the  honorary  services  pecuhar  to  it,  but  as  regards  the  burthensome 
incidents  which  it  had  in  common  with  knight's  service,  it  falls  under  the 
general  provision  by  which  they  are  abolished, (rf)  and  is  made  in  effect  free 

(y)  1  Inst.  73  ;  2  Inst.  65  et  seq. ;  Wright.  Ten.  210. 

(z)  Litt.   sect.  156.  (o)  Co.  Litt.  107,  b, 

(6)  1  Inst.  105,  b.  (c)  1  Inst.  107,  a,  b. 

id)  Harg.  Co.  Litt.  107,  n. ;  (1)  see  also  Gilb.  £q.  Rep.  176. 


1 


TENURE    IN    BURGAGE. 


407 


and  common  socage,  as  is  said  by  Littleton  of  petty  serjeanty,  Litt.  s.  180, 
and  see  infra,  §  748. 

Petty  Serjeanty. 

748.  Petty  serjeanty  consists  not  in  any  personal  service  like  grand  ser- 
jeanty, but  in  rendering  something  annually,  as  a  bow,  a  sword,  and  the  like 
to  the  queen,  which,  being  the  same  as  where  a  man  ought  to  pay  rent,  is 
socage  in  effect  ;(e)  it  is  probable,  therefore,  for  this  reason,  that  it  is  not 
expressly  mentioned  in  the  statute,  but  being  a  tenure  in  capite,  though  of 
the  socage  kind,  it  was  liable  to  livery  and  primer  seisin,  from  which  it  is 
relieved  by  the  general  provision  relating  to  these  burthens. 

There  is  another  tenure  mentioned  by  Littleton  under  the  name  of  Homage 
Auncestrelj,  which  was  where  the  same  tenant  and  his  ancestors  held  by 
homage  of  the  same  lord  and  his  ancestors. (/)  This  tenure  is  not  expressly 
mentioned  in  the  statute,  but  falls  no  doubt  within  the  general  provision 
which  abolishes  homage. (i>-)  It  had  in  all  probability  expired  before  the 
statute  was  passed,  as  my  Lord  Coke  supposes  that  there  was  little  or  no 
land  held,  in  his  day,  by  that  tenure. (A) 


*SECTION  IIL 

TENURE  IN  BURGAGE. 


[*593] 


§  749.  What  is  Burgage  Tenure. 
Borough-English. 
750.  Force  and  extent  of  the  Custom  in  re- 
srard  to  Descent. 


§  751.  Special  Custom. 
752.  Dower. 

Power  of  Disposition  by  Will. 


§  749.  Burgage  tenure  is  described  by  Glanvil  and  Littleton  as  but 
tenure  in  socage, (z)  where  the  king  or  other  person  was  lord  of  an  ancient 
borough  in  which  the  tenements  were  held  by  a  rent  certain.  Such 
boroughs  had  (and  still  have)  divers  customs  which  are  connected  with  this 
tenure,  and  distinguish  it  from  the  ordinary  socage  tenure.  Such  customs 
are  known  by  the  name  of  Borough-English,  and  they  alter  the  law  in  re- 
spect of  descent  as  well  as  of  dower,  as  also  to  the  power  of  devising. 

By  the  custom  of  Borough-English,  the  youngest  son  shall  inherit  to  his 
father  as  to  the  lands  of  which  he  dies  seised,  either  in  fee  simple(A;)  or  fee 
tail,(/?)  and  there  is  no  difierence  between  the  law  concerning  copyholds  in 
Borough-English,  and  freeholds  in  Borough-English  ;(m)  so,  if  land  in 
Borough-English  be  given  to  A.  and  his  heirs  for  the  life  of  B.,  and  A.  die 
in  the  life-time  of  B.,  leaving  two  sons,  the  youngest  shall  be  the  special 
occupant,  because  the  heir,  that  is,  representative  of  the  father,  as  to  land  of 


(c)  Litt.  s.  159. 

ig)  Harg.  Co.  Litt.  100,  b.,  n.  (1.) 
(i)  Glanv.,  1.  7,  c.  3  ;  Litt.  sect.  162. 
(0  Weeks  v.  Carvel,  Noy,  106. 


(/)  Litt.,  1,  2,  c.  7. 

(A)  1  Inst.  100,  b. 

{k)  Litt.,  sect.  211;  1  Inst.  110,  b. 

(m)  Reve  v.  Malstcr,  Cro.  Car.  411. 


408  crabb's   law   of    real   property. 

that  nature,  must  be  the  occupant,  for  where  custom  makes  an  heir,  the  law 
implies  all  incidents  in  course  of  descents.(n) 

*750.  So,  it  has  been  held,  that  the  custom  will  prevail^  against 
L  J  any  disposition  of  the  ancestor,  therefore,  where  a  man  seised  of 
Borough-English  lands  made  a  feoffment  to  the  use  of  himself  and  the  heirs 
male  of  his  body  secundum  ciirsicm  communis  legis,  and  died  leaving  issue 
two  sons,  the  youngest,  notwithstanding  the  feoffhient,  should  inherit  the 
lands  ;(o)  but  it  seems  to  be  otherwise  in  the  case  of  a  devise,  for  in  a  de- 
vise it  is  said  it  may  be  well  that  an  estate  in  fee  shall  cease  in  one,  and 
shall  be  transferred  to  another  •,{p)  so,  if  a  man  seised  of  Borough-English 
lands  died  leaving  two  sons,  and  the  eldest  entered  by  abatement,  held,  that 
this  should  not  take  away  the  entry  of  the  youngest,  because  the  eldest 
should  be  presumed  to  enter  to  preserve  the  estate  in  his  family,  which  he 
or  his  heirs  may  some  time  or  other  happen  to  enjoy, (y) 

So,  where  A.  had  issue  five  sons,  and  the  youngest  died  in  the  lifetime 
of  his  father,  leaving  issue  a  daughter,  after  which  the  father  purchased 
lands  in  Borough-English,  and  died,  held,  that  the  daughter  of  the  fifth  son 
should  inherit  ;(r)  so,  it  has  been  held,  that  the  youngest  son  should  have 
his  whole  distributive  share  of  personal  estate  of  his  father  dying  intestate, 
without  bringing  into  hotchpot  an  estate  of  the  nature  of  Borough-English 
descended  to  him,  for  that  an  estate  so  descended  is  not  within  the  Statute 
of  Distributions. (5) 

751.  By  special  custom  the  general  custom  may  be  restrained  or 
extended. 

The  customary  descent  may  be  restrained  to  lands  in  fee  simple,  and, 
therefore,  it  has  been  held  that  lands  in  fee  tail  should  goto  the  heir  at  com- 
mon law  -,{1)  so,  also,  that  the  descent  should  be  to  the  youngest  by  one 
-^  Avife  ;  but  where  *a  man  has  sons  by  different  venters,  then  the  eld- 
L  -J  est  should  inherit  to  his  father,  and  not  the  youngest. (w)  So,  the 
general  custom  may  be  extended  to  the  collateral  line,  and  the  youngest 
brother  shall  by  custom  inherit, (r)  or  the  youngest  sister.(w) 

The  law  takes  notice  of  the  custom  of  Borough-English,  and,  therefore, 
it  is  sufficient  to  allege  generally  the  custom  ;  but  where  it  is  a  special 
custom  extending  or  restraining  the  general  custom,  it  must  be  specially 
pleaded,  (a:) 

752.  The  custom  of  Borous'h-English  extends  also  to  the  law  of  dower; 
thus  in  some  boroughs  the  wife  shall  have  dower  in  respect  of  all  the  tene- 

(n)  Clements  v.  Scudamore,  1  Salk.  243 ;  S.  C,  2  Ld.  Raym.  1024  ;  S.  C,  1  P.  Wms. 
63 ;  S.  C,  6  Mod.  120 ;  Holt,  124  ;  S.  P.,  Baxter  v.  Doudswell,  2  Lev.  138 ;  S.  C,  3  Keb. 
475  ;  2  Danv.  542  ;  see  also  Vaugh.  201 ;  2  Vern.  226. 

(0)  Dy.  179  b,  pi.  45 ;  S.  C,  Jenk.  220.         (p)  Wellock  v.  Hammond,  Cro.  El.  205. 

(7)  1  Inst.  242, 

(r)  Clements  v.  Scudamore,  6  Mod.  120 ;  S.  C,  2  Ld,  Raym.  1024 ;  S.  C,  1  P.  Wms. 
63  ;  S.  C,  Holt,  124  ;  S.  P.,  Baxter  v.  Doudswell,  2  Lev.  138 ;  S.  C,  3  Kcb.  475 ;  2  Danv. 
542  ;  see  also  Vaugh.  201 ;  2  Vern.  226. 

(s)  Lutwyche  v.  Lutwyche,  Cu.  temp.  Talb.  276. 

{t)  Chapman  v.  Chapman,  March,  54.  (u)  1  Inst.  140,  b.  (»)  Id.  110,b. 

(w)  Id.  140,  b.  C^)  Robins,  on  Gavelk.  38  et  seq. 


TENURE     OF    GAVELKIND.  409 

ments  which  were  her  husband's  ;(y)  so,  in  some  boroughs  the  wife  shall 
have  the  moiety  of  her  husband's  lands  so  long  as  she  lives  unmarried  ;(z) 
so,  a  custom  that  a  wife  shall  have  all  her  husband's  copyholds  in  fee,  as 
her  free  bench,  is  good,  but  it  must  be  found  precisely  as  it  is  pleaded  ;(a) 
so,  she  shall  have  dower  of  rent,  or  common,  for  these  ensue  the  nature  of 
the  land. (6) 

By  the  custom  of  Borough-English  a  man  might  dispose  of  his  lands  by 
will  ;(c)  although,  by  the  general  law  of  the  land,  such  a  disposition  of  a 
man's  estate  was  not  permitted  before  the  reign  of  Hen.  8 ;  so,  by  the  same 
custom,  a  man  might  devise  a  rent  or  a  common  ;(f/)  but  whether  a  rent- 
charge  in  esse,  issuing  out  of  such  lands,  and  having  commenced  Aviihin 
time  of  memory,  was  within  the  custom  of  devising,  was  for  some  time  not 
settled,  (e) 

In  some  cases  the  custom  is  general,  that  a  man  may  devise  any 
lands ;(/)  in  some  places,  that  such  lands  only  can  be  devised  as  the  de- 
visor purchased ;  in  some,  that  he  *may  devise  any  estates  ;  in  p^ggg-i 
others,  only  an  estate  for  life  ■,{g)  so,  a  man  may  devise  to  his  wife,  L  ^ 
because  the  devise  does  not  take  effect  until  after  the  decease  of  the  devi- 
sor,(//)  see  further,  post,  tit.  Customary  Estates. 


SECTION  IV. 

TENURE  OF  GAVELKIND. 


§  753.  Properties  of  the  tenure  of  Gavel- 
kind. 

754.  Power  of  Alienation  by  Infants. 

755.  Descent.   ' 

Force  of  the  Custom. 
Extends  to  Rent. 
Antiquity  of  the  Custom. 

756.  Effect  of  a  Condition  broken. 


§  756.  Effect  of  a  Condition  in  a  Will. 

757.  INIanner  of  the  Descent. 
In  the  Case  of  the  Queen. 

758.  Curtesy  and  Dower. 

759.  Gavelkind  lands  devisable. 

760.  Partition  by  Heirs. 
Prescription  not  necessary. 
Manner  of  pleading  the  Custom. 


§  753,  Gavelkind  is  another  species  of  socage  tenure,  the  properties  of 
which  are  as  follow  : — 

1.  The  tenant  is  of  age  at  fifteen,  so  as  to  be  able  to  alien  his  estate. (z) 

2.  Gavelkind  land  was  alienable  without  any  license. (A:) 

3.  In  most  places  the  tenant  had  the  power  of  devising  lands  before  the 
Statute  of  Wills, (/)  and  the  power  of  devising  was  held  to  remain  although 
the  lands  were  disgavelled  by  Act  of  Parliament. (m) 

(y)  Lift.  Ten.  sect.  166.  (s)  1  Inst.  Ill;  F.  X.  B.  150. 

(a)  Boraston  v.  Hay,  Cro.  EI.  415.  (6)  Bro.  Custom,  44,  58. 

(c)  Litt.,  sect.  167.  (d)  1  Inst.  Ill,  citing  4  E.  3,  53 ;  7  H.  6, 1 ;  22  Ass.  78. 

(e)  Randall  v.  Jenkins,  1  Mod.  112  ;  Robins,  on  Gavelk.  79  et.  seq. 

(  f)  44  Ass.  pi.  36 ;  18  Ed.  3,  8 ;  44  Ed.  3. 33.  (e)  1  Inst.  1 12. 

(k)  Lilt.,  sect.  168.  (t)  3  Atk.  24.  (i)  1  Ander.  193. 

{I)  Launder  v.  Brooks,  Cro.  Car.  561 ;  S.  C,  cited  2  Sid.  154. 

(to)  Wiseman  v.  Cotton,  1  Lev.  80. 


410  crabb's  law  of  real  property. 

4.  The  lands  descend  not  to  the  eldest  or  the  youngest,  or  to  any  one  son 
only,  but  to  all  the  sons  together. 

5.  These  lands  are  not  forfeitable  for  felony,  although  they  are  for  treason. 
„  -,       *6.  Gavelkind  lands  are  subject  to  dower  and  curtesy,  see  further 

L         -J  infra,  §§  754  et  seq. ;   also  Lamb.  Peramb. ;  Bro.  tit.  Oust.  54 ; 
Somn.  on  Gavelk. ;  Robins,  on  Gavelk.,  passim. 

754.  Where  an  infant  sells  gavelkind  lands,  it  must  be  for  a  valuable  con- 
sideration, or  the  contract  will  be  void  ;(w)  and  this  must  be  done  by  feoff- 
ment, that  being  the  most  solemn  and  public  mode  of  conveyance,(n)  and 
the  livery  must  be  made  by  the  infant  in  person,  because  an  infant  cannot 
make  an  attorney  by  the  common  law,  and  since  the  custom  does  not 
expressly  derogate  from  the  common  law  in  that  point,  an  equitable  con- 
struction shall  not  make  it  derogate,  for  all  customs  are  to  be  construed 
strictly,(o)  and  as  to  livery  of  seisin,  see  7  &  8  V.  c.  76 ;  Prec.  Conv. 
Append.  No.  xviii.  So,  it  must  be  land  in  possession,  and  not  in  reversion 
or  remainder,  because  the  true  value  of  a  reversion  or  remainder  cannot  be 
known  or  computed. (/>)  So,  it  must  be  land  coming  by  descent,  and  not  by 
purchase,  because  the  infant's  purchase  could  not  be  the  subject-matter  for 
the  custom. (;j)  So,  an  infant  in  gavelkind  should  have  his  age  (now  abolish- 
ed by  11  G.  4,  and  1  W.  4,  c.  47,)  see  Dig.  P.  ii..  Courts  (Equity.) 

755.  The  custom  of  gavelkind,  as  to  descent,  extends  to  estates  tail,  and 
such  is  the  force  of  custom,  in  the  descent  both  of  gavelkind,  and  Borough- 
English,  that  even  in  the  case  of  estates  tail  it  cannot  be  changed  by  express 
words  directing  a  descent  secundum  cursum  communis  Icgis  ;[q)  so,  if  a 
man  give  or  devise  lands  in  gavelkind  to  a  man  and  his  eldest  heirs,  this 
does  not  alter  the  customary  inheritance, (r)  for  that  can  only  be  done  by 
Act  of  Parhament  ;(r)  but  there  is  a  difference  between  lands  inheritable 
by  descent  and  those  taken  by  purchase,  as  if  lands  of  the  nature  of 
r^PiQRl  *gavelkind  be  given  to  B.  and  his  heirs,  having  issue  divers  sons, 
L  -1  all  his  sons  after  his  decease  shall  inherit  ;(s)  but  if  a  lease  for  life 
be  made,  remainder  to  the  right  heirs  of  B.,  and  B.  dies,  his  eldest  son  only 
shall  inherit,  because  this  remainder  being  newly  created,  Avas  not  within 
the  custom  ;(s)  but  if  a  man  seised  of  lands  in  gavelkind  made  a  feoffment 
to  the  use  of  himself  and  his  wife  in  tail,  remainder  to  his  right  heirs,  held, 
that  this  remainder  shall  go  to  the  heirs  by  the  custom,  for  it  is  the  old  use, 
and  the  heirs  take  by  descent,  thoir  ancestor  having  a  precedent  estate  of 
freehold,  and  not  by  purchase  ;(f)  so,  where  in  a  devise  land  is  given  to  the 
customary  heir,  it  shall  go  to  him,  although  the  subject  of  the  gift  is  com- 
mon-law land,  as  if  one  having  Borough-English  land,  and  also  lands  at 
common  law,  devised  the  latter  to  his  heir  by  Borough-English,  held,  that 
this  was  a  sufficient  description  of  the  youngest  son  though  not  heir  at  com.- 
mon  law,(w)  and  a  like  devise  to  gavelkind  heirs  would  entitle  all  the 
sons.(w) 

(n)  Lamb.  625  ;  1  And.  193.  (o)  Lamb.  628 ;  1  Roll.  Abr.  568. 

(p)  Bcndl.  33,  pi.  52  ;  Lamb.  627. 

\(f)   Dy.  179  b,  pi.  45 ;  see  also  case  of  Tanistry,  Dav.  31  a,  and  36  b. 

(r)  1  Inst.  27.  b.  (s)  Dy.  133  b;  Hob.  31 ;  1  Inst.  140,  b. 

(0  26  H.  8.  4  b  ;  Bro.  Custom,  pi.  1 ;  Lamb.  548 ;  Robins,  on  Gav.  117  et  seq. 

(u)  2  Vem.  732 ;  Prec.  in  Chan.  464. 


TENURE    OF    GAVELKIND.  411 

Rent  issuing  out  of  gavelkind  land  shall  ensue  the  nature  of  the  land,  and 
although  it  was  at  one  time  doubted, (a;)  yet  it  seems  to  be  now  settled  that 
there  is  no  diflerence  between  a  rent-service  and  a  rent-charge  in  this  case ; 
therefore,  where  a  rent  was  granted  out  of  gavelkind  land  to  a  man  and  his 
heirs,  held,  that  it  should  descend  to  all  the  sons  or  brothers  according  to  the 
descent  of  the  land,  and  not  go  to  the  heir-at-law,  for  the  rent  issues  out  and 
is  part  of  the  profits  of  the  land. 

The  law  of  gavelkind  is  unlike  other  customs,  for  it  is  not  good  if  it  begins 
only  just  before  the  reign  of  R.  1,  for  this  custom  existed  long  before  any 
such  customs,  and  almost  before  any  history;  therefore,  where  lands  annex- 
ed to  a  rectory  in  Kent,  formerly  belonging  to  one  of  the  suppressed 
monasteries,  and  granted  by  H.  8,  to  a  layman,  to  be  holden  *by  r-^  rng-i 
knight's  service  in  capite,  were  descendible  according  to  the  custom  ' 
of  gavelkind,  held,  that  the  tithes  were  according  to  the  common  law,  as 
there  could  be  no  ancient  descent  with  respect  to  them.(i/) 

756.  As  a  rule,  the  heir  at  common  law  may  take  advantage  of  any  con- 
dition broken, (2:)  and  that  too  in  cases  where  there  is  a  special  heir,  whether 
by  the  custom  by  Borough-English  or  gavelkind,  because  a  condition  is  a 
thing  of  new  creation,  and  altogether  collateral  to  the  land,  not  being  in  any 
manner  like  to  rent,  which  is  part  of  the  profits  of  the  land,  see  supra,  §  754 ; 
but  it  is  said  that  Avhen  the  eldest  son  has  entered  for  the  condition  broken, 
the  younger  children  shall  enjoy  the  land  with  him,  because  the  eldest  son 
is  in  of  the  old  estate,  which  is  still  under  the  direction  of  the  custom  •,{a) 
so,  a  distinction  has  been  taken  between  a  condition  in  gross  and  a  condition 
incident  to  a  reversion,  for  of  the  latter  the  special  heir  shall  take  advantage, 
although  not  of  the  former ;  therefore,  where  a  man  made  a  lease  of  land, 
parcel  Borough-English  and  parcel  at  common  law,  with  a  proviso  that  if 
the  lessor,  his  heirs  or  assigns,  should  give  to  the  lessee  a  year's  warning  of 
his  intention  to  dwell  there,  then  the  lease  should  be  void,  the  lessor  died 
leaving  two  sons,  the  eldest  assigned  over  his  part  to  the  youngest,  the 
question  was  whether  the  youngest  was  such  a  person  as  could  give  warning, 
or  whether  the  condition  was  not  gone  by  the  severance  of  the  reversion  on 
the  death  of  the  lessor,  and  it  was  held,  that  the  special  heir  might  give  the 
warning,  for  the  law  which  severed  the  reversion,  severed  also  the  condition, 
so  that  for  one  part  as  heir  in  Borough-English,  and  on  the  other  part  as 
assignee  of  his  brother  by  the  32  H.  8,  c.  34,  he  should  take  advantage  of 
the  condition  ;  but  on  the  other  hand,  *where  a  man  made  a  feoff-  r^;gQQ-i 
ment  of  Borough-English  lands  on  condition,  and  died,  having  issue  L 
two  sons,  held  that  the  eldest  son  only  should  take  advantage  of  the  condi- 
tion, for  it  was  a  condition  in  gross,  and  not,  as  in  the  former  case,  where  the 
reversion  was  in  the  lessor. (6) 

Where  a  man  seised  in  fee  of  land  in  gavelkind  had  issue  two  sons,  and 
by  his  last  will  devised  the  land  to  his  eldest  son,  on  condition  that  he  paid 
to  the  wife  of  the  devisor  100/.  at  a  certain  day,  and  he  failed  in  payment, 
the  question  was  whether  the  younger  brother  might  enter  on  a  moiety  on 

(x)  Randal  v.  Roberts,  Noy,  15,  contrfi,  Bro.  Rent,  10. 13. 

(y)  Lushington  v.  Landlaff  (Bp.,)  2  N.  R.  491.  (i)  1  Inst.  233  ;  P  Co.  44. 

(o)  Lamb.  Perarab.  COS.  (6)  Moor,  113,  pi.  254 ;  S.  C.  Godb.  2. 


413  crabb's   law   of   real   property. 

his  brother  by  a  hmitation  implied  in  the  estate, (c)  but  this  doubt  is,  as 
Lord  Coke  observes,  well  resolved  by  the  following  determination. 

A  copyholder,  in  fee  of  land  descendible  in  Borough-English,  having 
three  sons  and  a  daughter,  after  a  surrender  to  the  use  of  his  will,  devised 
the  land  to  his  eldest  son,  on  condition  of  his  paying  to  his  daughter  and 
each  of  his  other  sons  40*.,  within  two  years  after  his  death  :  the  eldest 
son  was  admitted  and  did  not  pay  the  money  ;  the  youngest  son  entered  on 
the  land,  and  his  entry  was  held  lawful,  for  though  the  word  "  paying,"  in 
case  of  a  will,  might  make  a  condition,  yet  here  the  law  construed  it  a  limi- 
tation, of  which  the  youngest  son  in  Borough-English,  might  take  advan- 
tage. ((Z) 

757.  The  manner  of  descent  of  gavelkind  lands  is  first  to  the  male  chil- 
dren and  then  to  the  female  children,  then  to  collateral  relations  ;(e)  and  the 
descent  has,  after  the  manner  of  the  civil  law,  regard  to  the  stirpes  ;  and 
therefore  if  the  eldest  son  had  issue  a  daughter,  and  died,  his  daughter 
r*fini1  ^'^°"'^  i^^''^  representalionis  inherit  her  father's  share  ;(/)  other- 
1-  -^  wise  the  custom  agrees  with  the  common  law,  that  a  woman  shall 
never  take  part  of  an  inheritance  with  a  man.(a') 

Where  lands  in  gavelkind  descended  to  the  king  and  his  brother,  held, 
that  the  king  should  take  one  moiety  and  his  brother  the  other,  but  when 
the  king  died  his  moiet)'^  should  descend  to  his  eldest  son,  and  not  according 
to  the  rules  in  gavelkind,  for  the  king  was  seised  of  his  moiety ^wre  coronse, 
therefore  it  shall  attend  the  Crown,  and  go  to  his  eldest  son. 

By  the  31  H.  8,  c.  3,  and  six  other  private  Acts,  a  great  part  of  the  lands 
in  Kent  have  been  disgavelled,  so  as  to  destroy  their  partible  quality  and 
make  them  descendible  to  the  eldest  son,  according  to  the  course  of  the  com- 
mon law  ;(/t)  but  it  has  been  held,  that  these  lands  have  lost  no  other  of  the 
qualities  belonging  to  gavelkind  land  than  their  partibility.(i) 

758.  Lands  of  gavelkind  tenure  are  subject  to  curtesy  and  dower.  By 
the  custom  of  gavelkind,  a  man  may  be  tenant  by  the  curtesy  without  hav- 
ing any  issue, (A:)  but  he  is  entitled  to  have  only  a  moiety  of  the  wife's  land, 
and  if  he  marries  again  it  ceases. (/) 

So,  likewise,  the  wife,  )dy  the  same  custom,  is  to  have  after  the  death  of 
her  husband  a  moiety  of  his  inheritance  in  gavelkind,  to  hold  as  long  as  she 
continues  unmarried  and  chaste  ;(m)  and  a  woman  cannot  waive  this  dower 
and  claim  dower  at  common  law,  for  where  gavelkind  is  the  lex  loci,  it  must 
govern  the  property  of  that  place, (m)  and  in  that  case  the  dower  must  be  a 
moiety,  and  not  a  third  of  the  inheritance,  as  at  common  law.(n) 

r*fin2l       *759.  All  gavelkind  land  is  devisable,  for  being  from  the  begin- 
L         -^  ning  allodial  it  followed  the  rules  of  the  civil  law,  which  permits 

(c)  Dy.316. 

((/)  Wellocke  v.  Hammond,  3  Co.  20  ;  S.  C,  Cro.  El.  204;  2  Leon.  114. 

(e)  1  Inst.  140,  a. ;  Robins,  on  Gavelkind,  92. 

(/)  Litt.,  sect.  210  ;  Lamb.  608  ;  1  Inst.  140,  a. ;  1  Salk.  243 ;  1  P.  Wms.  63 ;  6  Mod. 
129.  (j/)  Glanv.,  ].  7,  c.  3. 

(A)  I  Inst.  140,  b  ;  Rob.  on  Gavelk.  75.  (i)  1  Sid.  77  ;  Lev.  80  ;  2  Keb.  288. 

{k)  1  Inst.  30,  a.  {I)  Lamb.  615  ;  1  Inst.  30,  a.;  Rob.  Gavelk.  135  et  seq. 

(?«)  Hunt  V.  Gilburne,  Cro.  El.  121 ;  S.  C.  nom.  Hunt  and  Gilborn's  case,  1  Leon.  133; 
Lamb.  616.  (n)  Sav.  91 


FRANKALMOIONE.  413 

any  person  to  make  his  will  ;(o)  but  by  the  express  words  of  the  Statute  of 
Frauds,  which  is  re-enacted  by  the  7  W.  4  &  1  Vict.  c.  26  the  devise  of 
these  as  of  other  lands  must  be  in  Avriting. 

«  • 

760.  Heirs  in  gavelkind  shall  make  partition  as  parceners,  and  a  writ  of 
partition  lies  between  them  as  it  does  between  parceners  at  common  la.\v,(p) 
and  in  the  declaration  upon  such  writ  the  custom  must  be  mentioned,  as  to 
say  that  the  land  is  of  the  custom  of  gavelkind ;  but  it  is  necessary  to  pre- 
scribe, for  though  the  custom  is  different  from  the  general  law  of  the  kino-- 
dom,  it  must  be  taken  notice  of  to  the  judges,  yet  there  is  no  necessity  for 
prescribing,  because  it  is  lex  loci;(p)  so,  it  is  sufficient  for  any  one,  who 
will  entitle  himself  by  the  custom  of  gavelkind,  to  plead  that  the  land  is  in 
Kent,  and  of  the  nature  of  gavelkind,  without  pleading  the  custom  gene- 
rally ;  but  if  any  one  will  plead  the  custom  of  devising,  or  of  having  a 
moiety  as  tenant  by  the  curtesy  or  in  dower,  he  must  plead  the  custom  spe- 
cially, for  gavelkind  is  the  general  law  of  the  place,  and  not  a  particular 
custom,  and  the  judges  only  take  notice  of  the  general  and  not  of  the  spe- 
cial customs  of  gavelkind.(5') 


*SECTION  V.  [*603] 

FRANKALMOIGNE. 

^  761.  Frankalmoigne  excepted  out  of  the     I      §  762.  Spiritual  Services  belong  to  this 
Statute.  I  Tenure. 


§  761.  Frankalmoigne,  another  tenure  which  is  excepted  out  of  the 
statute  12  C.  2,  c.  24,  is  that  whereby  a  religious  corporation  aggregate  or 
sole  hold  lands  of  the  donor  to  them  and  their  successors,  and  the  service 
they  had  to  perform  being  divine,  they  were  not  bound  to  do  fealty,(?*)  but 
if  a  tenant  in  frankalmoigne  alien  his  land  or  tenement  in  fee,  to  hold  of  the 
lord  by  the  same  services  as  he  held,  the  alienee,  although  he  be  an  eccle- 
siastic, shall  hold  it  by  fealty,  for  he  cannot  hold  it  in  frankalmoigne, 
because  since  the  Statute  of  Quia  Emplores,  18  Ed.  1,  c.  1,  he  cannot  hold 
it  of  the  grantor,  unless  under  a  license  granted  by  virtue  of  the  1  &  2  Ph. 
&  M.  c.  8,  s.  54.(5) 

A  tenement  in  frankalmoigne  is  not  only  exempted  from  all  temporal  ser- 
vices, but  the  lord  of  whom  he  holds  is  likewise  bound  to  acquit  him  of 
every  service  and  fruit  of  tenure,  which  the  lord  paramount  may  demand  of 
the  land  holden  by  this  tenure. (A 

762.  Spiritual  tenure  is  twofold,  namely,  tenure  by  frankalmoigne,  and 
tenure  by  divine  service;  and  the  services  to  be  performed  are  either  spi- 
ritual, as  prayers  to  God,  or  temporal,  as  the  distribution  of  alms  to  the 

(0)  Rob.  Gav.  234.  ( p)  Litt.  Ten.,  sect.  26-') ;  1  Inst.  1 75. 

(9)  Launder  v.  Brooks,  Cro.  Car.  562 ;  Lamb.  595  ;  Rob.  on  Gavclk.  41  et  seq. 
(r)  1  Inst.  93,  95.  (s)  Id.  98 ;  2  Inst.  502.  (0  1  Inst.  99,  100. 

December,  1846 27 


414  crabb's   law  of   real  propertt. 

poor,(t/)  as  in  the  latter  case  is  the  office  of  the  queen's  aImoner,(.T)  which 
is  usually  given  to  the  Archbishop  of  York,  with  the  title  of  Lord  High 
Almoner.(^)  As  the  manner  of  celebrating  *divine  service  has  been 
*-  -^  altered  by  several  statutes,  it  is  sufficient  if  a  tenant  in  frankfri- 
moigne  perform  such  divine  service  as  may  now  lawfully  be  performed. (2) 
As  the  divine  service  which  ought  to  be  performed  is  never  ascertained 
by  the  deed  on  creating  the  tenure  of  frankalmoigne,  no  distress  can  be 
made,  although  it  be  not  performed;  but  in  default  of  performance,  the 
defaulter  is  amenable  to  the  ordinary  or  visiter,  Avho  may  punish  him  for 
the  same. (a)  But  tenure  by  divine  service  differs  from  that  of  frankal- 
moigne in  respect  of  the  certainty  of  the  services  to  be  performed,  and  of 
the  remedy  by  distress  to  which  such  tenants  are  liable  on  non-performance 
of  the  stated  services.  Fealty  also  is  incident  to  divine  service,  though  not 
to  frankalmoigne.  Neither  of  these  tenures  can  be  created  by  a  subject  at 
this  day,  in  consequence  of  the  above-mentioned  statute  18  Ed.  1,  and  the 
12  C.  2  expressly  provides  that  frankalmoigne  shall  be  subject  to  no  other 
or  greater  services  than  it  was  before. 


[*605]  *CH  AFTER    III. 

COPYHOLD,  AND  OTHER  LIKE  TENURES. 


Sect.  I. 
§  764.  Common  Copvholds. 
Sect.  II. 
§  919.  Privileged  Copyholds. 


§  763.  There  are  three  kinds  of  tenure  of  lands  still  existing,  being  ex- 
cepted from  the  12  C.  2,  c.  24,  which,  from  the  nature  of  the  services  to  be 
performed,  were  considered  of  base  tenure,  and  still  retain  many  vestiges  of 
their  original ;  these  are  tenure  by  copy  of  court-roll,  or  copyholds  derived 
from  pure  villenage,  customary  freehold,  and  tenure  in  an  ancient  demesne, 
which  two  are  species  of  privileged  villenage. 

(w)  Id.  95.  (i)  Id.  94.  (y)  Uarg.  Co.  Litt.  91,  a.,  n.  (6), 

(z)  1  Inst.  95,  b.  (a)  Litt.,  sect.  136  ;  1  Inst.  96,  a. 


COMMON    COPYHOLDS. 


416 


SECTION  I. 


COMMON  COPYHOLDS. 

764.  This  branch  of  the  subject  comprehends  the  following  particulars 
entitled  to  notice  : — 

1.  What  is  a  copyhold,  and  the  requisites  thereto. 

2.  Incidents  to  copyholds. 

4.  Demise  of  copyholds.  > 

4.  Rights  and  interests  of  lord  and  tenant. 

5.  Estates  in  copyholds. 
*6.  Alienation  of  copyholds. 

7.  Extinguishment  of  copyhold  tenure. 

8.  Injuries  in  respect  of  copyhold  lands,  and  their  remedies. (a) 


[*606] 


I.  CWhat  in  a  ©opwliolty,  avcn  the  2Kc()[Ufsites  tliertto. 


§  765.  Definition  of  a  Copyhold. 

Wliat    necessary     to     constitute    a 
Manor. 

766.  Copyhold  not  grantable  in  this  Day. 

767.  Remains  Copyhold  after  Severance, 

when. 

768.  Copyhold  must  be  at  all  Times  de- 

misable. 


§  768.  Though  it  may  not  have  been  always 
demised. 
In  case  of  Escheat. 
769.  Rights  and  Liabilities  of  Copyholder 
regulated  by  Custom. 
What  Customs  shall  be  deemed  rea- 
sonable. 


§  765.  A  copyhold  is  where  a  man  is  seised  of  a  manor,  in  which  there 
is  a  custom  that  has  existed  time  out  of  mind,  that  certain  tenants  within  the 
same  have  used  to  hold  lands  and  tenements  at  the  will  of  the  lord,  accord- 
ing to  the  custom  of  the  manor,  and  they  are  called  tenants  by  copy  of  court- 
roll,  because  they  have  no  other  evidence  concerning  their  tenements  than 
the  copies  of  the  court-roll. 

To  constitute  a  copyhold  four  things  are  essential,  viz. — 1.  To  be  time 
out  of  mind ;  2.  To  be  parcel  of  a  manor ;  3.  Demisability ;  and  4. 
Custom. 


1.   To  be  Time  out  of  Mnd. 

766.  A  copyhold  ought  to  be  time  out  of  mind,  for  it  cannot  begin  at  this 
day  ;  therefore,  if  the  lord  grants  land  by  copy,  what  has  not  been  granted 
before,  it  is  no  copyhold, (6)  though  it  continues  in  grant  for  any  number  of 
*years  short  of  fifty, (c)  and  held,  that  the  lord,  though  he  afterwards  p-j(/,r>~-, 
granted  it  for  a  further  term  of  years,  might,  nevertheless,  enter  as  ^         J 

{a)  Bract.,  1.  2,  c.  8,  fol.  26  ;  Calth.  on  Copyh.  51,  54 ;  and  sec  Reay  v.  Huntington,  4 
East,  276.  (/;)  Kempe  and  Carter's  case,  1  Leon.  56. 

(c)  Taverner  and  Cromwell's  case,  3  Leon.  107. 


416         crabb's  law  of  real  property. 

upon  a  tenant  at  will  ;(fZ)  but  a  continuance  in  grant  for  upwards  of  fifty 
years  without  interruption  was  held  to  fix  a  customary  interest. (rf) 

2.   To  he  Parcel  of  a  Manor. 

767.  A  copyhold  ought  to  be  parcel  of  a  manor,  or  within  a  manor,(e) 
but  it  is  not  necessary  that  it  continue  parcel,  for  if  the  lord  grants  the 
inheritance  of  all  the  copyholds  within  the  manor,  whereby  they  are  severed 
from  the  manor,  yet  the  copyholds  remain  •,[f\  so,  if  the  lord  grants  the  in- 
heritance, it  remains  copyhold,  and  shall  pay  rents,  heriots,  and  other  ser- 
vices to  the  feoffee,  and  shall  be  subject  to  forfeiture  for  alienation,  &c.,  as 
before  ;  but  suit  of  court  and  fine  upon  alienation  are  gone,  and  if  such 
copyholder  will  alien,  there  is  no  means  but  by  a  decree  in  Chancery.(g-) 

3.  Demisability. 

768.  So,  a  copyhold  ought  to  be  at  all  times  demised  or  demisable, (/«)  and 
it  must  have  been  so  time  out  of  mind  ;(i)  and  it  cannot  be  created  by  Opera- 
tion of  law,  and  therefore,  where  wastes  are  severed  from  the  manor,  by  a 
grant  of  the  latter  with  exception  of  the  former,  the  copyhold  is  become 
freehold,  though  the  copyholders  continue  to  have  a  right  of  common  in  the 
waste  by  immemorial  custom,  and  the  land  will  be  freehold,  and  not  continue 
copyhold,  (t) 

But  it  is  sufficient  if  it  be  demisable,  though  it  have  not  alwa)''s  been  de- 
mised ;(A:)  therefore,  if  the  lord  holds  a  copyhold,  which  escheats  to  him,  in  his 
r*finsl  ^^^"^^  ^^^  many  years,  he  *may  afterwards  demise  it  by  copy  ;(/)  so, 
L  -^  if  it  comes  into  his  hands  by  any  other  means, (A  and  his  heir  or 
assignee  may  afterwards  regrant  it  ;(A  so,  if  a  copyholder  takes  a  lease  or 
other  estate  of  the  manor,  or  of  his  copyhold,  whereby  his  copyhold  is 
destroyed,  yet  the  land  may  afterwards  be  granted  by  copy,  for  it  was  always 
demisable  ;(m)  so,  if  a  lord  after  a  copyhold  escheats,  demises  the  manor 
and  the  escheated  tenements  by  express  word,  yet  it  may  afterwards  be 
granted  by  copy,  for  it  was  always  demisable ;(«)  for  the  demise  of  the 
manor  includes  that  copyhold  as  parcel  of  the  demesnes,  and  the  naming  of 
it  signifies  nothing  ;(n)  but  if  the  lord  leaves  such  escheated  copyhold  for 
life  or  years,  or  conveys  it  for  any  other  estate  except  at  will,  it  cannot 
afterwards  be  granted  by  copy,  for  it  was  not  always  demisable  ;(o)  so,  if  he 
make  a  feoffinent,  and  afterwards  enters  for  a  condition  broken ;(/;)  so,  if  the 
queen,  being  lady,  by  letters-patent  grants  an  escheated  copyhold,  &c.,  not 
knowing  of  it,  it  shall  be  the  same,  though  she  was  deceived  •,{q\  so,  if  the 
Jand  is  extended  upon  a  statute  or  recognizance  acknowledged  by  the  lord, 
or  the  wife  of  the  lord  has  the  land  assigned  to  her  for  her  dower,  the  land 

(J)  Id.  108.  (p)  1  Inst.  58,  b. 

i  f)  Melwich's  case,  4  Co.  26  b ;  S.  C.  nom.  Mclvvich  v.  Lutlicr,  l^Cro.  El.  102. 

Ig)  Copyhold  cases,  Ca.  10 ;  4  Co.  25  a.  (A)  1  Inst.  58,  b. 

(i)  Revcll  V.  Joddrcll,  2  T.  R.  415. 

ik)  1  Inst.  58,  b;  French's  case,  4  Co.  31. 

(/)  1  Inst.  58,  b. ;  French's  case,  4  Co.  31. 

(m)  French's  case,  sup. ;  Sav.  70,  pi.  145.  (n)  Lee  v.  Boothby,  Cro.  Car.  521. 

(o)  French's  case,  4  Co.  31,  a ;  Lee  v.  Bootliby,  sup.  (b)  French's  case,  sup. 

(j)  W.  iQ.  449 


COMMON     COPYHOLDS.  417 

can  never  after  be  granted  by  copy  ',{q)  for  although  these  impediments  are 
by  acts  in  law,  yet,  being  lawful  interruptions,  the  land  cannot  be  granted 
any  more  by  copy  ;(»•)  sed  secus  if  by  a  wrongful  act  it  has  ceased  to  be 
demisable,  for  when  such  act  is  avoided  the  land  may  be  re-granted  by 
copy,(r)  as  if  a  copyhold  has  been  recovered  by  false  verdict,  or  an  erro- 
neous judgment  ;(r)  so,  if  a  husband,  seised  of  a  manor  in  right  of  his  wife, 
grants  by  indenture  an  escheated  copyhold,  &c.,  the  wife  after,  his  death 
may  regrant  it  by  copy  ;(s)  so,  the  same  law  is,  if  tenant  for  life  lets  a  copy- 
hold, parcel  of  a  manor,  *and  dies,  it  shall  not  destroy  the  custom  r-#f.Qoi 
as  to  him  in  reversion  ;(^)  see  also  further,  post,  §§  839  et  seq.  >- 

4.  Custom. 

769.  Custom  has  been  said  to  be  the  life  and  soul  of  copyhold  tenure, (w) 
for  what  a  copyholder  may  and  ought  to  do,  or  not  to  do,  the  custom  of  the 
manor  directs  ;(«)  for  although  a  copyholder  is  called  a  tenant  at  will,  yet 
he  is  so  secundum  consttetudinem  manerii,  and  it  is  held  that  these  words 
were  not  to  bound  the  lord's  pleasure  in  the  determination  of  his  will,  but 
meant  only,  that  the  tenant,  as  long  as  he  continued  tenant,  Avas  to  hold  the 
land  under  those  terms  and  conditions  which  the  custom  had  established. (a^) 

Customs,  so  far  as  they  relate  to  copyholds,  are  either  general  or  parti- 
cular :  general  customs  extend  to  all  kinds  of  manors,  they  are  the  lex  loci, 
of  which  the  courts  take  notice ;(?/)  but  particular  customs,  which  are  pecu- 
liar to  some  manors  only,  must  be  specially  pleaded,  and  will  be  construed 
strictly.  A  custom  must  be  immemorial,(z)  therefore  a  privilege  attached 
to  an  ancient  messuage  cannot  be  claimed  in  respect  of  a  tenement  recently 
built  ;(a)  so,  it  must  be  reasonable,  and  if  not  contrary  to  reason  maybe 
allowed  ;(i)  so,  it  is  sufficient  to  show  that  it  is  reasonable  in  its  commence- 
ment, and  It  need  not  be  intended  to  have  a  lawful  commencement  by  grant, 
&c.;(c)  see  further  as  to  custom  and  prescription,  post,  Title  to  Things 
Real. 

A  custom  may  be  reasonable,  though  it  be  contrary  to  a  rule  or  maxim  of 
law,  as  the  custom  of  gavelkind  or  Borough-English,  (see  ante,  §§  749.  753 
et  seq.)  So,  a  custom  may  be  reasonable,  though  there  be  a  general  provi- 
sion by  statute  to  the  contrary,  if  the  custom  is  not  expressly  *taken  -. 
away,  as  a  custom  that  a  tenant  within  the  Cinque  Ports  shall  not  L  J 
be  in  ward  ;((^/)  so,  a  custom  shall  be  reasonable,  though  the  right  of  another 
be  restrained,  as  a  custom  that  all  the  inhabitants  of  a  vill  shall  grind  all  the 
corn  they  use  at  the  lord's  mill;(e)  but  a  custom  for  inhabitants  to  grind  all 
their  grain  whatsoever  by  them  spent  or  sold  was  held  to  be  void ;(/)  see 

(9)  W.  Jo.  449. 

(r)  Frcncli's  case,  sup.  (s)  Conesbie  v.  Husky,  Cro.  El.  459. 

(<)  Conesbie  v.  Rusky,  Cro.  El.  459 ;  see  also  2  Roll.  Abr.  271. 
(u)  Browne's  case,  4  Co.  21.  (»)  1  Inst.  63,  a. 

(x)  1  Str.  452.  (y)  Dav.  31  b;  Salk.  184. 

(z)  Co.  Cop.,  s.  33  ;  Jackman  v.  Hoddesdon,  1  Cro.  El.  352. 
(a)  Dunster  v.  Tresider,  5  T.  R.  2.  (6)  1  Inst.  62,  a. 

(c)  Gateward's  case,  6  Co,  60  b.  (d)  Dy.  288,  289  ;  Palm.  543. 

(e)  1  Roll.  Abr.  559. 

(/)  Harbyn  v.  Greene,  Hob.  180  ;  see  also  Coryton  v.  Litheby,  2  Saund.  112 ;  Chapman 
T.  Flexman,  2  Vent.  288;  Ld.  Uibridge  v.  Staveland,  1  Vez.  56. 


418  crabb's  law   of   real  property. 

further  as  to  customs,  post,  Title  to  Things  Real  ;  and  as  to  the  statutory 
provisions  respecting  copyholds,  see  Dig.  P.  i.  ii.  tit.  Copyholds. 


II.  Uncttftnts  to  ©o^jsiioltr  STenurr,^ 

The  fruits  and  appendages  of  copyhold  tenure,  which  are  all  reserved  by 
the  12  C.  2,  are  fealty  and  services,  fines,  reliefs  and  heriots,  wardship  and 
escheats. 


I.  JfcaltB  anlr  Scrbfccs. 


§  770.  What  Fealty  was  and  is. 

771.  By  whom   Suit  of   Court   may   be 

done. 

772.  Suit  of  Court  may  be  done  by  Attor- 

ney,  when. 
Suit  by  Women. 
Suit  by  Corporations. 


§  772.  Suit  by  Joint-tenants    and    Copar- 
ceners. 

773.  Different  Kinds  6f  Rent. 

774.  Loss  of  Rent. 

775.  Apportionment  of  Rent. 

776.  Recovery  of  Rent  by  Distress. 
Time  no  Bar  to  a  Distress,  when. 


§  770.  Fealty,  which  was  common  to  every  species  of  tenure,  except 
frankahnoigne,  signifies  the  oath  which  was  administered  to  every  tenant  of 
fidelity  to  the  lord,  and  to  do  suit  at  his  court  ;(g-)  the  neglect  of  it  might  be 
r*fiii'l  distrained  for,(/t)  *which  was  formerly  much  insisted  on,(i)  and 
i-  -^  could  not  be  done  by  attorney, (J)  nor  by  an  infant  in  person, (yt)  but 
is  now  usually  respited  by  a  small  payment,  and  entered  as  respited, (/)  and 
equity  has  in  some  instances  relieved  against  the  consequences  of  such 
neglect,  (m) 

The  word  "service,"  in  its  largest  sense,  comprehends  not  only  fealty  but 
also  heriots  and  reliefs,  &c.,  but  in  a  restricted  sense  is  confined  to  suit  of 
court  and  certain  rents. 

1.   Suit  at  Court. 

771.  As  to  suit  of  court,  every  copyholder  was  and  still  is  bound  to  attend 
the  lord's  court,  and  to  perform  the  duties  of  a  homager,  and  it  seems  that 
the  lord  may  hold  a  court  as  frequently  as  he  pleases,  if  custom  has  not  fixed 
the  periods  ;(n)  and  if  a  copyholder  resident  within  the  manor  does  not  ap- 
pear nor  essoign,  after  a  general  notice  affixed  on  the  church  door,  he  may 
be  amerced.(o) 

(^)  Co.  Cop.,  ss.  19  et  seq.  (A)  Crawley  v.  Kingsmill,  Noy,  24. 

(»)  1  Inst.  [)2.  ( j)  Id.  93, 

(A)  Combe's  case,  9  Co.  76  a  ;  Floyer  v,  Hedgingham,  2  Clian.  Rep,  56. 
(0  Harg.  Co.  Litt.  68,  b,  n.  (5). 

(m)  Cox  V.  Higford,  2  Vern.  664 ;  citing  Cudmore  v.  Raven,  lb,,  cited  Free,  in  Chanc, 
574,  nom.  Edmore  and  Craven. 

(n)  Co.  Cop.,  s.  31  ;  2  Watk.  on  Cop,  19, 

(o)  Belfield  v.  Adams,  3  Bulstr.  80 ;  S,  C.  nora.  Soutlicot  v.  Adams,  1  Roll.  Rep.  256. 


COMMON    COPYHOLDS.  419 

772.  Suit  of  court  by  freehold  tenants  may  be  done  by  attorney,  but  the 
tenant  cannot  make  an  attorney  by  parol  ;(;^)  copyholders  cannot  make  suit 
by  another,  as  they  are  not  within  the  20  H.  3,  c.  I0,{q)  but  if  a  copyholder 
be  dwelling  at  a  distance  from  the  manor,  a  general  notice  of  the  holding 
the  court  is  not  sufficient  to  make  his  absence  a  wilful  refusal  or  "  cause  of 
forfeiture," ((/)  unless  he  is  living  at  an  inconvenient  distance,  in  which  case 
notice  to  his  bailiff  is  sufficient  ;(g)  so,  illness,  or  the  discharge  of  a  great 
office,  are  good  excuses  of  absence. ((jf) 

*Suit  may  be  done  by  a  feme  sole  or  a  widow  in  a  customary  pj^p.n-i 
court,  but  a  woman  cannot  sit  on  the  homage  to  try  issues  in  a  court-  L.  -I 
baron  at  common  law,  where  the  suitors  are  judges ;(/•)  so,  a  widow  cannot 
make-presentment  unless  the  husband  died  without  an  heir.(s) 

A  corporation  cannot  do  suit,  because  they  can  only  do  it  by  attorney,  and 
whether  a  corporation  can  hold  lands  by  copy  of  court  roll  is  not  decided. (/) 

Joint-tenants  and  coparceners  are  but  as  one  tenant  to  the  lord,  and  shall 
therefore  do  but  one  suit,(?/)  except  where  the  lands  are  held  of  the 
queen, (y)  but  tenants  in  common  take  several  estates,  and  must  severally  do 
suit.(z^?) 

2.  Bents. 

773.  Rents  reserved  by  the  lord  are  called,  generally,  rents  of  assize, 
because  they  were  usually  assized  or  reduced  to  a  certainty,  and  are  thus 
distinguished  from  the  rents  for  life,  years,  or  at  will,  Avhich  are  variable  and 
uncertain  ;(a;)  and  these  were  reserved  equally  on  the  grants  of  freehold  as 
on  those  of  copyhold  lands  ;(.r)  but  those  paid  by  freeholders  are  called 
"  chief  rents;"  if  the  rent  reserved  was  in  lieu  of  all  services,  it  was  on  that 
account  called  a  quit  rent,(x)  and  being  usually  paid  in  silver  was  called 
"  white  rent,"  in  distinction  from  that  paid  in  specie,  as  pepper,  cummin, 
&c.,  which  was  called  "black  rent,"  see  further,  ante,  §  154. 

774.  A  rent  originally  reserved  in  respect  of  copyhold  property  may  be 
lost  by  suffering  it  to  be  received  for  many  years  by  the  lord  of  another 
manor,  as  may  happen  where  two  manors  become  united  in  one  person, 
and  afterwards  get  again  into  the  hands  of  different  owners  ;  thus,  p^pio-i 
*where  the  lord  of  the  manor  of  D.,  which  he  purchased  from  B.,  L  -' 
who  was  formerly  owner  of  both  T.  and  D.,  brought  his  bill  to  compel  pay- 
ment of  rent  out  of  a  copyhold  held  of  the  manor  of  I.,  though  he  had  no 
other  evidence  to  show  for  it  but  that  it  had  been  paid  to  him  for  twenty 
years,  the  Court  decreed  to  him  the  arrears,  Steward  v.  Bridger;(2/)  and  it 
was  there  said,  that  in  case  of  encroachment  of  rent,  if  the  tenant  make  but 
one  payment  of  more  than  is  due,  he  shall  never  go  back  from  it. (2) 

775.  The  doctrine  of  apportionment  of  rents  is,  as  a  rule,  applicable  to 

(p)  Kitch.  145.  ((/)  Sir  John  Braunche's  case,  1  Leon.  104. 

(r)  2  Inst.  119;  Gilb.  Ten.  by  Watk.  357,  475,  (N.  10,  168). 

(s)  F.  N.  B.  159  ;  2  Walk.  Cop.  69,  70  ;  1  Scriv.  Cop.  432. 

it)  Co.  Cop.,  s.  19  ;  1  Ca.  and  Opin.  186  ;  Duke  Char.  Us.  24,  by  Bridgman,  135. 

(.u)  Kitcli.  108.  (r)  F.  N.  B.  159,  L. 

(«j)  Bruerton's  case,  6  Co,  1.  (x)  2  Inst.  19. 

(y)  2  Vera.  516.  (z)  Steward  v.  Bridger,  2  Vern.  516. 


420  crabb's  law   of   real  property. 

copyholds  ;  therefore,  a  lord  seised  in  fee  may,  on  a  re-grant  of  copyholds, 
apportion  the  rent,  in  the  same  manner  as  in  the  case  of  freehold  lands  held 
by  an  ancient  quit  rent  ;(a)  the  effect  of  such  apportionment  being  a  release 
and  extinguishment  of  the  residue  of  the  rent  as  to  the  particular  lands  re- 
granted  ;(6)  but  see  as  to  cases  where  the  rents  can  or  cannot  be  apportioned 
in  a  re-grant  of  escheated  copyholds,  Co.  Cop.,  s.  41,  tr.  91. 

776.  The  lord  may  distrain  for  rents  of  assize  of  common  right  ;(c)  and 
,by  the  4  G.  2,  c.  28,  s.  5,  all  persons  have  the  like  remedy  by  distress  for 
rents  of  assize,  chief  rents,  and  rents  seek,  as  in  case  of  rents  reserved 
upon  lease,  and  the  lord  may  distrain  the  copyholder,  or  he  may  seize  the 
land.(f?) 

So,  the  lord  of  a  manor  may  avow  for  a  rent  issuing  out  of  a  copyhold, 
for  rent  is  a  duty  at  the  common  law,(e) 

In  Eldridge  v.  Knott, (/)  it  was  held,  that  no  length  of  time  within  the 
period  limited  by  the  32  H.  8,  c.  2,  (one  of  the  old  Statutes  of  Limitations, 
see  Dig.  P.  iii.  tit.  Limitations,)  for  the  recovery  of  customarj'-  rents,  is  a 
bar  to  a  distress  for  quit  rents  ;  and  mere  length  of  time,  unaccompanied 
r*Ria.l  ^^^•'■^  ^"y  circumstances,  is  not  of  itself  a  sufficient  ground  to  pre- 
L  J  sume  a  release  or  extinguishment  of  such  a  rent ;  and  in  that  case 
it  was  added,  that  a  presumption  from  mere  length  of  time  in  support  of  a 
right,  was  very  different  from  a  presumption  to  defeat  a  right. (^) 

Copyholds  not  being  within  the  32  H,  8,  c.  37,  the  arrears  of  rent  for 
copyhold  tenements  cannot  be  recovered  by  executors  in  an  action,  or  by 
distress  under  the  provisions  of  that  act. (A)  As  to  remedies  in  equity  for 
lords  of  manors,  see  post,  §  903. 

(a)  Kitch.  170.  (6)  Reay  v.  Huntin^rton,  4  East,  271. 

(c)  Litt.,  sect.  213 ;  1  Inst.  14-3,  a.  ((/)  Rivet  v.  Dowe,  Nov,  135. 

(c)  Lauffhter  v.  Humplirev,  Cro.  El.  524.  (/)  Cowp.  214." 

(g)  Eldridge  v.  Knott,  Cowp.  214. 

(/i)  Ognel's  case,  4  Co.  50  ;  Appleton  v.  Doily,  Yelv.  135  ;  S.  C.  nom.  Appleton  v. 
Baily,  1  Brownl.  102 ;  Sands  v.  Hempston,  2  Leon."  109  ;  S.  C.  nom.  Execulors  of  Sir  Wm 
Cordel,  Id.  252  ;  S.  C.  nom.  Earl  of  Westmoreland's  case,  3  Leon.  59, 


COMMON    COPYHOLDS. 


421 


II.  j^fiirs. 

§  778.  Fine  due  on  Change  of  Tenant  or    §  786. 

Lord.  787. 

On  Change  of  Tenant.  788. 

On  Change  of  Lord.  789. 

779.  Persons  from  ^hom  due. 

From  the  Heir.  790. 
From  Devisee  of  Heir. 

780.  Fine  due  from  .Surrenderee.  791. 

from  Vendee  in  case  of  Trust 
for  Sale. 

781.  Fine  due  from  Remainderman.  792. 

782.  Persons   having   legal  or   equitable 

Estate,   when   not  liable   to  pay 

Fine.  793, 

783.  Executors,  &c.,  liable,  or  otherwise. 
Tenant  in  Dower  or  by  Curtesy.  794. 

784.  Joint-tenants.  795. 
Coparceners.  796. 

765.  Tenants  in  Common  to  pay  distinct  797. 

Fines.  798. 

Distinct  Fines  payable  on  several  799. 

Tenements.  800. 
786.  Commissioners  of  Bankrupt. 

801.  Means  of  recovering 


In  the  case  of  an  Extent,  &c. 

General  and  special  Occupancy. 

Fine  certain. 

Fine  uncertain. 

Fine  must  be  reasonable. 

What  is  a  reasonable  Fine,  or  other- 
wise. 

Amount  of  Fine  in  case  of  Tenants 
for  Life,  &c. 

Fines  on  Renewal  of  Lives. 

Fine   to   be   assessed    by   Lord   or 
Steward. 

By  the  Homage, 

Several   Fines   in   case   of   several 
Services. 

Place  of  Assessment. 

Entry  of  Assessment  on  the  Rolls. 

Demand  of  the  Fine. 

Tender  of  the  Fine. 

Payment  of  Fine  certain. 

Payment  of  Fine  uncertain. 

Payable  by  the  Purchaser. 

by  Remainder-man. 

a  Fine. 


*§  777.  Fines  payable  to  the  lord  were  a  burdensome  incident  to  ^  t^-, 
knight's  service,  which,  on  the  abolition  of  this  last  tenure,  were  Li 
expressly  reserved,  by  the  12  C.  2,  to  the  copyhold  tenure.  On  this  subject 
the  following  points  are  entitled  to  notice,  that  is — 

1.  When  and  from  whom  the  fine  i»due. 

2.  Gluantity  of  the  fine. 

3.  Assessment  of  the  fine. 

4.  Demand,  tender,  or  payment  of  the  fine. 

5.  Recovery  of  the  fine. 

1.  TJTien  and  from  whom  the  Fine  is  due. 

778,  A  fine  may  be  due  either  on  the  change  of  the  tenant  or  of  the  lord. 
When  the  fine  is  due  on  the  change  of  the  tenant,  it  is  immaterial  whether 
it  is  b_v  the  act  of  God,  as  the  death  of  the  tenant,  or  bj""  the  act  of  the  party, 
as  by  his  alienation,  and  in  this  case  it  is  said  to  be  due  without  any  special 
custom,  being  almost  an  incident  to  copyhold  tenure, (i)  for  this  fine,  when 
due  on  the  death  of  the  tenant,  was  of  the  nature  of  the  primer  seisin  of 
knight's  service  before  its  abolition  ;(^)  and  the  fine  on  the  alienation  of  the 
tenant  was  of  precisely  the  same  nature  as  the  feudal  burden  which  tenants 
in  chivalry  had  been  subject  to  before  the  12  C,  2,(/) 

The  fine  due  on  change  of  the  lord  can  only  be  where  the  change 
happens  by  the  act  of  God,  and  not  b}'  the  act  of  the  party,  and  even  in 


{i)  Grant  v.  Astle,  2  Douel.  724,  n.  (i)  2  Comm.  98. 

(0  See  Kitch.  103  ;  Gilbl  Ten.  292 ;  Watk.  on  Cop.  2S6. 


423  CRAB  b' 3    LAW  OF    REAL    PROPERTY. 

the  first  case  it  will  not  be  due  without  a  special  custom  ;(m)  in  the  latter 
case,  a  custom  to  have  a  fine  on  any  change  of  the  lord  of  the  manor,  by- 
alienation  or  demise,  is  against  law,  for  by  this  means  the  tenant  might 
be  oppressed  by  a  multitude  of  fines.(n)  But  where,  by  the  custom  of  a 
manor,  any  fine  is  due  on  the  death  of  the  lord,  held,  that  the  customary 
general  fine  or  gressum,  as  distinguished  from  the  fines  payable  on  the 
^  *death  or  alienation  of  the   tenant,  which  are   called  "dropping 

^  -J  fines,"  was  not  restricted  to  those  claiming  by  descent,  and  there- 
fore, that  the  husband,  tenant  for  life  under  a  marriage  settlement  was  enti- 
tled to  a  fine  upon  the  death  of  his  wife,  the  last  admitting  lady.(n) 

779.  As  to  the  persons  from  whom  due,  in  the  first  place,  if  the  copy- 
holder dies,  a  fine  is  due  to  the  lord,  on  the  admittance  of  the  heir,  and  that, 
it  should  seem,  without  any  special  custom,  see  ante,  §  778 ;  and  if  the  heir 
die  before  admittance,  this  shall  not  prejudice  the  lord  as  to  his  fine  ;  there- 
fore, the  heir  or  devisee  of  such  heir  cannot  compel  admittance  except  upon 
the  payment  of  a  double  fine  ;(o)  so,  in  the  case  of  a  surrender  by  heir 
before  admittance,  see  infra,  §  780. 

780.  As  a  rule,  if  a  copyholder  surrender,  a  fine  is  due  upon  the  admit- 
tance of  the  surrenderee  ;{p)  but  if  a  copyholder  in  fee  surrenders  to  the 
use  of  one  for  life,  and  the  tenant  for  life  dies,  he  may  enter  without  any 
new  admittance  or  paying  any  fine,  for  he  has  his  old  estate  ;(o)  so,  if  an 
heir  of  a  copyholder  surrender  before  admittance,  yet  he  shall  not  prejudice 
the  lord  as  to  the  fine  due  to  him  (see  ante,  §  779)  upon  the  descent  ;(»•)  so, 
if  a  surrender  be  on  condition,  by  way  of  mortgage,  the  mortgagor,  on  pay- 
ing the  money  before  the  condition  broken,  may  re-enter  without  any  new 
admittance,  or  paying  a  fine,  for  he  is  in  of  his  old  estate  ;(s)  so,  if  he  sur- 
render, reserving  rent,  with  power  of  re-entry,  if  rent  in  arrear,  no  fine  will 
be  payable  on  such  re-entry  ;(s)  but  if  the  day  appointed  for  the  payment 
of  the  money  be  past,  it  seems  that  he  must  be  re-admitted,  having  only  an 
equity  of  redemption ;(/)  so,  if  after  condition  broken,  the  lord  insists  on 
r-^R\<-r-\  ^^^  mortgagee  ^coming  in  and  paying  the  fine,  equity  will  not 
L         -•  relieve  the  latter.(2<) 

If  copyholder  surrenders  to  the  use  of  his  will  and  directs  two  trustees  to 
make  sale  of  his  copyhold,  and  to  apply  the  money  to  certain  purposes,  they 
may  sell  without  being  admitted,  and  the  lord  shall  admit  the  vendee  and 
have  but  one  fine.(y) 

781.  If  a  copyholder  in  fee  surrender  to  one  for  life,  remainder  to  another 
for  life,  remainder  to  another  in  fee,  by  this  but  one  fine  is  due,  except  by 


(m)  2  Dougl.  724,  (n)  1  Inst.  59,  b. 

(n)  Somerset  (Duke)  v.  France,  1  Stra.  651;  S.  C,  Fortes.  41. 

(o)  Morse  v.  Faulkner,  1  Anst.  13.  (p)  Co.  Co;>.,  s.  56  ;  1  Inst.  59,  b. 

(7)  Prodger's  case,  9  Co.  107.  (r)  Browne's  case,  4  Co.  22,  b. 

(s)  Gilb.  Ten.  275. 

(t)  Id.  276 ;  and  see  Fawcctt  v.  Lowthcr,  2  Vcz.  302. 

(u)  Tredway  v.  Fotherly,  2  Vern.  367. 

(t))  Holder  V.  Preston,  2  VVils.  400. 


COMMON    COPYHOLDS.  423 

special  custom  •,{tv)  for  the  admittance  of  the  particular  estate  is  the  admit- 
tance of  him  in  remainder  ;(.t)  so,  when  the  particular  tenant  and  the 
remainder-man  join  in  a  surrender,  as  their  interests  form  but  one  estate,  one 
fine  only  is  due  from  the  surrenderee  ;{y\  but  if  the  person  to  whom  the 
remainder  is  limited  surrender  his  interest  to  another,  a  fine  will  be  due  on 
the  admittance  of  such  surrenderee  ;(z)  so,  likewise,  on  admittance  of  the 
heir  of  the  remainder-man  ;(z)  and  it  is  said,  that  the  lord  may  assess  one 
fine  for  the  particular  estate,  and  another  for  the  remainder,  Batmore  v. 
Graves  ;(«)  and  in  the  same  case  it  was  added,  "  If  a  fine  be  assessed  for  the 
whole,  there  is  an  end  of  the  business  ;  but  if  a  fine  be  assessed  for  a  parti- 
cular estate  only,  the  lord  ought  to  have  anotlier."(6) 

782.  Persons  having  an  equitable  estate  only,  as  cestui  que  use  or  cestui 
que  trust,  need  not  be  admitted,  and,  consequently,  cannot  be  called  upon  to 
pay  a  fine,  for  as  to  the  *first,  the  Statute  of  Uses  does  not  extend  to  p^pio-i 
copyholds, (c)  and  as  to  the  second,  he  in  whom  the  legal  estate  is  L  -' 
vested,  that  is,  the  trustee,  is  properly  the  tenant  of  the  manor  ;(rf)  therefore, 
if  a  copyhold  be  devised  to  A.  for  the  use  of  B.,  A.,  and  not  B.,  is  the  per- 
son to  be  admitted  and  pay  the  fine  ;(e)  so,  on  the  same  principle,  if  a  copy- 
holder covenant  to  surrender  his  land  to  A.,  and,  before  the  surrender  made, 
A.  assign  his  right  to  B.,  the  fine  will  be  payable  on  B.'s  admittance,  and 
not  on  the  covenant  to  surrender,  for  this  transferred  no  legal,  only  gave  him 
an  equitable  interest  in  the  land  ;(»•)  so,  no  fine  is  payable  on  the  assign- 
ment, grant,  or  devise,  of  an  equity  of  redemption,  for  on  the  breach  of  the 
proviso  for  redemption  the  mortgagee  becomes  the  tenant,  and  is  bound  to 
pay  the  fine  ;{h\  so,  neither  can  a  fine  be  demanded  of  one  having  a  mere 
authority,  without  any  legal  interest  in  the  copyhold,  as  in  the  case  of  trus- 
tees with  a  power  to  sell,  see  ante,  §  779  ;  so,  a  guardian  of  an  infant  having 
merely  a  right  to  the  pernancy  of  the  profits,  shall  pay  no  fine  ;(i)  so,  if  a 
copyholder  be  disseised,  and  enter  upon  the  disseisor,  or  recover  against  him 
by  plaint,  he  will  be  in  of  his  old  estate,  and,  consequently,  no  fine  is  due  ;(j) 
or  if  a  rightful  owner  of  a  copyhold  release  to  one  that  is  in  by  wrong,  no 
fee  will  be  due,  he  being  already  tenant. (A:) 

783.  It  was  formerly  holden  that  the  executor  of  a  copyholder  for  years 
should  have  the  term  without  any  new  admittance ;(/)  it  is  however  now 
settled  that,  whenever  a  term  for  years  is  limited  on  surrender,  or  created  by 

(w)  Finch's  case,  4  Go.  22 ;  Barnes  v.  Corke,  .3  Lev.  308. 

(x)  lb. ;  see  also  Blackburn  v.  Graves,  1  Mod.  103.  120  ;  S.  C,  3  Keb.  263.  329  ;  S.  C, 
1  Vent.  260  ;  S.  C,  2  Lev.  107  ;  S.  C,  2  Danv.  185. 

iy)  Kitcli.  242  ;  Co.  Cop.,  s.  26.  tr.  130. 

{z)  1  Burr.  213  ;  Gilb.  Ten.  417,  Walk,  ed.,  n.  (77.)  (a)  1  Vent.  260. 

{!))  lb. ;  and  see  1  Mod.  120 ;  1  Burr.  212  ;  Gilb.  Ten.  163,  n.  (d.-)  Also,  as  to  contri- 
bution  between  the  particular  estate  and  the  remainder-man,  1  Walk.  Cop.  311  ;  1  Scriv. 
Cop.  406.  (c)  Cro.  Car.  44  ;  2  Vez.  257. 

(d)  Gilb.  Ten.  157  ;  2  Comm.  331 ;  1  Watk.  Cop.  289  et  seq. 

(e)  Bath  (Earl)  v.  Abney,  1  Burr.  206 ;  see  also  Rivet's  case,  Moor,  890 ;  Trinity  Coll. 
V.  Browne,  1  Vern.  441 ;  Allen  v.  Poulton,  1  Vez.  121. 

(§■)  R.  V.  Hendon  (Lord  of  the  Manor,)  2  T.  R,  484, 

(A)  2  Vern.  367  ;  Gilb.  Ten.  276.  («)  Co.  Cop.  s.  56. 

( j)  Co.  Cop.,  s.  56,  tr.  129  ;  4  Co.  25.  (i)  4  Co.  25  b  ;  1  Inst.  59,  b 

(0  Haunchet's  case,  Dy.  251 ;  3  Leon.  9  ;  Winch.  3  ;  Gilb.  Ten.  289. 


424  crabb's  law  of  real  property. 

devise,  the  termor  will  be  tenant  to  the  lord,  and  his  executors  on  his 
^  *death  must  be  admitted  and  pay  a  fine,  Bath  (Earl)  v.  Abney  ;(m) 

L  -^  in  that  case  it  was  insisted  that  the  executors  took  no  new  estate, 
and,  as  new  tenants  only,  they  were  not  liable  to  pay  any  fine,  but  the 
judge's  certificate  into  Chancery  decided  otherwise. 

Tenant  in  dower,  or  by  the  curtesy,  where  the  custom  allows  of  such 
estates,  shall,  it  is  said,  pay  a  fine  ;(n)  but  see  1  Walk.  Cop.  300,  where 
this  is  disputed. 

784.  Joint-tenants  are  seised  per  mie  ef  per  tout,  therefore,  if  one  die,  the 
survivor  shall  have  all  without  admittance  or  paying  a  fine  ;  for  when  one 
joint-tenant  dies,  the  other  takes  his  share,  and  continues  in  the  original 
admittance  ;(o)  so,  on  an  original  surrender  to  two  jointly,  but  one  fine  is 
due;(p)  and  the  same  law  applies  to  coparceners,  who  as  being  one  heir  are- 
entitled  to  admittance  on  the  payment  of  one  ;{q)  so,  if  joint-tenants  and 
coparceners  join  in  a  surrender,  only  one  fine  is  due  on  the  admittance  of 
the  surrenderee  :(r)  but  as  the  customary  heir  or  heirs  of  each  coparcener 
must  be  admitted,  the  lord  is  of  course  entitled  to  fines  on  such  respective 
admissions. 

785.  Tenants  in  common  are  to  be  admitted  severally,  and  must  there- 
fore pay  several  fines,(5)  although  Lord  Coke  in  his  Copyholder,  s.  56,  and 
also  Kitchen  on  Courts,  242,  lay  down  a  different ;  but  this  is  supposed  in 
Attree  v.  Scott(/)  to  be  a  misprint,  see  also  Plowd.  140;  Perk.,  s.  107  ;  so, 
the  customary  heirs  of  each  must  be  admitted  and  pay  several  fines  ;(u)  but 

-,  it  is  now  settled,  that  if  the  several  *undivided  shares  of  copyhold 
L  -^  heretofore  belonsfino-  to  tenants  in  common  become  united  in  one 
person,  they  form  one  entire  estate,  and  one  fine  only  would  become  due  on 
the  admission  of  the  surrenderee.  Garland  v.  Jekyll,(u)  Holloway  v.  Berke- 
ley ,(.r)  overruling  Attree  v.  Scott, (j/)  where  it  was  held,  that  the  multipli- 
cation of  fines  and  services  should  continue  notwithstanding  such  union. 

On  the  same  principle  as  governs  tenants  in  common,  it  has  been  held, 
that  one  fine  cannot  be  assessed  on  the  admission  to  several  copyhold  tene- 
ments.(^) 

786.  When  copyholds  prior  to  the  6G.  4,  c.  16,  were  included  in  the  bar- 
gain and  sale  from  the  commissioners  to  the  assignees  of  a  bankrupt,  the 
admittance  of  the  assignees  was  necessary,  and  a  fine  due  in  consequence 
thereof ;  but  when  the  commissioners  conveyed  the  copyholds  immediately 
to  a  purchaser,  a  fine  became  due  from  him  only. (a)     By  the  1  &  2  W.  4, 

(m)  1  Burr.  20G.  (n)  Co.  Cop.,  s.  56,  tr.  128  ;  Gilb.  Ten.  223, 

(o)  Co.  Cop.,  s.  35,  tr.  82.  (p)  Id.  s.  56,  tr.  130. 

(q)  R.  V.  Bonsall  (Manor,  &c.,)  3  B.  &  C.  173  ;>  S.  C,  4  D.  &.  R.  825. 
(r)  Gilb.  Ten.  73,  330,  n.  ( /") ;  see  also  Co.  Cop.,  s.  56  ;  Calth.  Read.  61. 
(s)  Fisher  v.  Wigg,  1  Ld.  Raym.  631 ;  S.  C,  1  P.  Wms.  21 ;  S.  C.  1  Salk.  391 ;  Attree 
V.  Scott,  6  East,  484  ;  S.  C,  3  Smith,  458.  (0  Sup. 

(m)  Br.  Abr.  tit.  Feoffm.  de  Terres,  pi.  45.  (r)  2  Binor.  273.'' 

{X)  6  B.  &C.  2  r  S.  C,  9  D.  &  R.  73.  (y)  6  East,  484 ;  S.  C,  2  Smith,  458. 

iz)  Grant  v.  Astle,  2  Dougl.  T22.  (a)  Drury  v.  3Iann,  1  Atk.  96. 

»Eng.  Com.  Law  Reps.  s.  47.     i-Id.  is.  412.     »Id.  xiii.  97. 


COMMON     COPYHOLDS.  425 

c.  56,  the  copyhold  estates  of  a  bankrupt  become  vested  in  the  assignees, 
without  the  necessity  of  any  admittance,  and  the  fine  in  consequence  becomes 
payable  by  the  purchaser. 

If  there  be  a  custom  for  a  copyholder's  lands  to, be  extended,  the  extendor 
upon  his  admittance  shall  pay  the  fine. (6) 

787.  The  principle  of  general  occupancy  is  not  applicable  to  copyholds, 
the  freehold  never  being  out  of  the  lord  ;(c)  but  my  Lord  Coke  says,  "  If  a 
copyhold  be  granted  durante  vita,  and  the  grantee  dieth  living  cestui  que 
vie,  and  a  stranger  entereth  as  a  general  occupant,  he  shall  be  admitted  and 
pay  a  fine."  In  the  case  of  special  occupancy,  which  apphes  to  copyholds 
without  any  custom  in  favour  or  it((/)  a  fine  *is  due  upon  the  admis-  pvggn 
sion  of  the  heir  or  other  person,  who  is  special  occupant. (e)  L 

2.   Quantity  of  the  Fine. 

788.  Fines  payable  on  the  change  of  the  copyholder  may  be  certain  and 
defined,  or  arbitrary  at  the  will  of  the  lord.(/)  The  fine  is  said  to  be  cer- 
tain, when  the  sum  payable  is  fixed  and  ascertained  by  immemorial  usage, 
in  which  case  the  lord  is  tied  down  by  the  custom  and  cannot  exceed  it  ;(g-) 
but  the  law  will  presume  the  fine  to  be  uncertain  until  the  contrary  is 
proved,  and  this  must  be  decided  by  the  rolls  of  the  court,  in  which  the 
most  ancient  series  of  entries  will  be  deemed  true  evidence  of  the  fine,  even 
though  contradicted  by  a  series  of  entries  for  a  period  of  a  hundred  years 
past  or  more,  indicating  a  different  sort  of  fine  ;(/ij)  and  a  few  instances  of 
uncertain  fines  will  be  considered  of  no  weight  either  way  ;(i)  a  fine  certain 
may,  however,  not  always  be  a  gross  sum,  as  five  or  ten  pounds,  but  it  may 
depend  upon  the  value  of  the  land,  as  to  pay  for  the  fine  such  sum  as  the 
land  may  be  worth  by  the  year  at  the  time  of  admittance,  which  being  easily 
ascertained  by  the  jury,  is  considered  to  be  equally  certain  as  a  sum  in 
gross  ',{k)  and  a  custom  to  have  a  year's  value,  generally,  for  a  fine,  has 
been  held  to  be  good. (A;) 

789.  A  fine  is  said  to  be  uncertain  and  arbitrary  when  it  depends  upon 
the  will  and  pleasure  of  the  lord,  or  other  person  having  a  right  to  assess  it. 
But  though  it  is  uncertain,  it  is  not  altogether  arbitrary,  for  it  ought  to  be 
reasonable,  otherwise  the  copyholder  is  not  compellable  to  pay  it ;(/)  and 
*whether  a  fine  be  reasonable  or  not  shall  be  determined  by  the  jus-  (-*g22l 
tices  upon  the  circumstances  appearing  in  the  case  \[m)  and,  there-  L 

(6)  Co.  Cop.,  S.  56.  »     c    r^     ■,    a   ^y 

(c)  Ven  V.  Howell,  1  Roll.  Abr.  511  ;  Smartle  v.  Penhallow,  6  Mod.  63  ;  S.  C,  1  balk. 
183  ;  Zouch  V.  Forse,  7  East,  166.  ^.„    ^       „_ 

(d)  Lenipri^re  v.  Martin,  2  Bl.  1148.  (e~)  Co.  Cop.,  s.  56,  tr.  128  ;  Gilb.  Ten.  327. 
(/)  2  Comm.  98.                     {g)  Allen  v.  Abraham,  2  Bulstr.  32. 

(A)  lb.;  see  also  Lord  Gerard's  case,  Godb.  265  ;  1  Watk.  Cop.  306. 

(i)  Litt.  Rep.  252.  ^         „  ^  ^      ,    m 

ik)  Perkins  V.  Titus,  Skinn.  247  ;  S.  C,  Carth.  12 ;  S.  C,  3  Lev.  249  ;  S.  C.  Comb.  43 ; 
S.  C,  3  Mod.  132  ;  S.  C,  2  Show.  507  ;  Ca.  463  ;  S.  C,  1  Frcem.  494  ;  Ca.  669. 

(l)  1  Inst.  59  ;  Hubbard  v.  Hammond,  4  Co.  27 ;  S.  C.  nom.  Dalton  v.  Hamond,  Cro. 
El.  779  ;  S.  C  ,  Moor,  662  ;  S.  C,  1  Roll.  Abr.  507 ;  see  also  Co.  Cop.  1 60  ;  Gilb.  Ten.  219  ; 
1  Mod.  120  ;  1  P.  Wms.  63,  66 ;  2  Dougl.  729. 

Cfrt)  Hubbard  v.  Hammond,  4  Co.  27  ;  Moor,  623. 


426        crabb's  law  of  real  property.  > 

fore,  if  an  action  be  brought  against  the  tenant  by  the  lord,  it  shall  be  refer- 
red to  the  court  upon  demurrer  ;(w)  or  the  defendant  may  plead  not  guilty, 
and  upon  proof  of  the  land  and  other  evidence,  the  Court  will  decide  ;(o) 
but  if  a  copyholder  prays  a  mitigation,  it  does  not  conclude  him,  but  he  may 
afterwards  insist  on  the  unreasonableness  of  the  fine  ;{p)  the  copyholder  is 
however  bound  to  show,  that  the  fine  is  unreasonable. (5-) 

790.  As  a  rule,  two  years'  improved  value  is  held  to  be  a  reasonable  fine 
on  admission  to  copyholds  of  inheritance,  or  for  lives  when  renewable,  Hal- 
ton  V.  Hassel;(r)  see  also  Willowes'  case,(s)  where  two  years'  value  was 
deemed  unreasonable,  Hubbard  v.  Hammond, (/)  Jackman  v.  Hoddesdon,(z<) 
Wharton  v.  King;(a;)  deducting  quit  rents,  but  not  land-tax.  Grant  v. 
Astle  ;(j/)  see  also  Allen  v.  Abraham, (z)  Dow  v.  Goulding,(o)  Stower  v. 
Smith, (6)  Accledon  v.  Kinnesley,((^')  Lake  v.  Jetherell,(i)  and  other  cases ; 
Morgan  v.  Scudamore,(c)  Middleton  v.  Jackson  ;{(l)  where  a  year  and  a 
half's  improved  rent  has  been  held  to  be  the  maximum  in  common  cases. 
On  alienation,  it  is  said,  that  by  custom  the  lord  shall  not  be  restricted  to 
two  years'  value,  for  he  may  take  four,  five,  or  even  seven  years'  value  ;(e) 
so,  where  a  fine  is  payable  by  custom  on  the  first  purchase  only,  the  lord  is 

^  -,  not  restricted  as  to  the  amount  of  the  fine;(e)  so,  not  oti  the  *grant 
C'  -J  of  lands  coming  into  the  lord's  hands  by  escheat,  for  the  re-grant 
being  voluntary  on  his  own  part,  he  may  fix  his  own  terms,  and  the  person 
soliciting  the  grant  may  accept  or  reject  them  as  he  pleases ;(/)  so,  not  to 
copyholds  for  lives,  &c.,  see  1  Watk.  Cop.  308. 

791.  As  to  the  amount  of  fine  where  there  is  an  admission  of  tenants  for 
life,  and  persons  in  remainder,  &c.,  at  the  same  time,  the  tenant  for  life  is  to 
pay  one  whole  fine  the  same  as  tenant  in  fee,  and  the  person  in  remainder 
is  usually  required  to  pay  half  the  amount  of  the  fine  payable  by  the  tenant 
for  life  \{g)  but  where  there  are  more  lives  than  one  to  take  in  succession, 
it  is  said,  in  Bath  (Earl)  v,  Abney,(/i)  "  The  fine  for  two  lives  is  the  sesqui 
of  that  taken  for  one,  and  the  fine  for  three  is  the  sesqui  of  that  taken  for  two, 
by  the  usage  of  the  manor,"  and  this  is  understood  to  signify  that  <«  The  fine 
for  the  third  life  is  the  half  of  that  taken  for  the  se.cond  life  ;"(i)  so,  the 
usage  in  most  manors  on  a  renewal  of  copyholds  for  three  lives,  is  to  take 
for  the  first  life  a  year  and  a  half's  value,  for  the  second  life  half  as  much  as 
the  fine  for  the  first,  and  for  the  third  life  half  as  much  as  the  fine  for  the 
second^;(A;)  but  in  Wilson  v.  Hoare(/)  it  has  been  held,  that  the  proper 
mode  of  assessing  a  fine  upon  the  admission  of  joint-tenants  to  a  copyhold  of 

(n)  Co.  Ent.  647.  (0)  Hubbard  v.  Hammond,  sup. ;  Denny  v.  Leman,  Hob.  135. 

(p)  1  Roll.  Abr.  507.  (q)  Hob.  135.  (r)  2  Str.  1042.  (s)  13  Co.  1. 

(0  Sup,  (w)  Cro.  El.  351  ;  S.  C,  1  Roll.  Rep.  75  ;  1  Inst.  60. 

{x)  3  Anst.  673 ;  S.  C,  3  Swanst.  666.  (y)  2  Dougl.  722. 

(«)  2  Bulst.  32.  (a)  Cro.  Car.  196.  {h)  Toth.  164. 

(c)  2  Chan.  Rep.  134.  (d)  1  Chan.  Rep.  33. 

(e)  R.  V.  Dillington,  1  Freem.  496  ;  S.  C.  nom.  R.  v.  Dilliston,  1  Show.  31 ;  1  Salk.  386 ; 
3  Mod.  221.  (/)  13  Co.  3 ;  Hetl.  6  ;  1  Watk.  Cop.  308. 

ig)  1  Watk.  Cop.  311.  (/()  1  Burr.  267,  207,  marg. 

(i)  Per  Ld.  Tenterden,  C.  J.,  Wilson  v.  Hoare,  2  B.  &  Ad.  350.» 
{k)  1  Watk.  Cop.  sup. ;  1  Scriv.  Cop.  387,  3d  ed.  (I)  Sup. 

•Eng.  Com.  Law  Reps.  xxii.  95. 


COMMON     COPYHOLDS.  437 

inheritance  was,  to  take  two  years's  improved  value  for  the  first  life,  for  the 
second  life  one-half  the  sum  taken  for  the  first,  and  for  the  third  life  one- 
half  the  sum  taken  for  the  second  and  so  on. 

3.  Assessment  of  the  Fine. 

792.  As  to  the  assessment  of  the  fine,  it  is  necessary  to  consider  by 
whom  it  may  be  made,  manner  and  place  of  making  and  entry  of  the  assess- 
ment. 

*It  belongs  of  common  right  to  the  lord  or  his  steward  to  assess  r-^(.n4■^ 
the  fine ;(?»)  but  a  custom  that  a  copyholder  for  life  in  extremis  L  J 
may  nominate  a  successor  to  have  the  copyhold,  paying  a  reasonable  fine, 
to  be  agreed  upon  with  the  lord,  or  if  that  fail,  to  be  assessed  by  the  homage, 
has  been  adjudged  to  be  a  good  custom  ;(n)  so,  to  nominate  one  or  two  as 
successors,  (o) 

793.  If  a  copyholder  holds  several  copyholds  by  several  services,  there 
ought  to  be  set  upon  every  one  a  several  fine  ;(;;)  and  there  is  no  distinc- 
tion in  that  respect  between  a  customary  heir  and  a  surrenderee,  nor  is  it 
material  whether  the  admission  be  contained  in  one  or  several  copies  ;(5) 
and  in  Snag  v.  Fox(j*)  it  was  held,  that  a  surrender  by  a  copyholder  to  par- 
ticular uses,  under  which  his  son  should  be  admitted  in  tail,  would  operate 
as  a  severance  of  the  estate  from  any  other  lands  left  to  descend  to  such  son, 
so  as  to  entitle  the  lord  to  separate  fines. 

One  gross  sum  cannot  be  assessed  on  the  admission  to  several  copyhold 
tenements.  Grant  v.  Astle  ;(s)  and  in  this  case  it  was  also  held,  that,  being 
so  stated  in  the  declaration,  it  was  error,  and  not  cured  by  verdict. (<) 

794.  In  one  case  it  was  held,  that  a  fine  might  not  only  be  assessed  but 
might  be  made  payable  out  of  the  manor  ;(m)  *but  this,  which  was  r-jc^op-T 
the  case  of  a  fine  for  license  to  alien,  appears  to  be  the  only  autho-  L  -^ 
rity  for  such  a  position. (u) 

795.  The  entry  of  the  assessment  on  the  rolls  is  not  necessary  to  entitle 
the  lord  to  the  fine,  but  a  demand  on  behalf  of  the  lord,  it  being  a  reasonable 
and  legal  fine,  is  sufficient ; (a?)  but  if  an  entry  be  made  of  an  assessment,  it 
must  be  of  the  sum  actually  assessed,  without  regard  to  any  sum  remitted 
by  the  lord;  therefore,  where  the  assessment  was  entered  as  of  100/.,  but 

(m)  Lord  Northwick  v.  Stanway,  6  East,  57  ;  S,  C.  nom.  Lord  Northwick  v.  Stanton,  2 
Smith,  226.  (n)  Yelmester  Custom,  cited  Noy,  2. 

(o)  Crabb  v.  Bales,  Id.  3  ;  S.  C,  come  semble,  nom.  Crabb  v.  Bevis,  1  Roll.  Abr.  48 ;  see 
also  Ford  V.  Hoskins,  Cro.  Jac.  368  ;  1  Freem.  494  ;  Freeman  v.  Phillips,  4  M.  &  S.  486. 

(p)  Hobart  v.  Hammond,  4  Co.  27  ;  S.  C.  nom.  Dalton  v.  Hammond,  Moor,  622  ;  S.  C, 
Cro,  El.  779. 

(5)  Taverner  and  Cromwell,  4  Co.  27  a ;  Hitch  v.  Wallis,  cited  2  Dougl.  729  ;  see  also 
Co.  Cop.,  s.  56,  tr,  131  ;  Gilb.  Ten.  218 ;  Whitfield  v.  Hmit,  cited  2  Dougl.  727  b,  n. ; 
Searle  and  Marsh,  cited  in  Everest  v.  Glynn,  6  Taunt.  428  ;''  S.  C,  2  Marsh.  84. 

(r)  Palm,  342.  (s)  2  Dougl.  721. 

it)  Grant  v.  Astle,  2  Dougl.  721.  («)  Yaxley  v.  Rainer,  1  Ld.  Raym.  44. 

(c)  See  1  Watk.  Cop.  317,  318;  1  Scriv.  Cop.  418. 

(a:)_Lord  Northwick  v.  Stanway,  6  East,  56 ;  S.  C,  but  not  S.  P.,  3  B.  &  P.  346. 

^Eng.  Com.  Law  Reps.  i.  437. 


428  crabb'slaw    of    real    propertv. 

that  out  of  special  favour  the  lord  remitted  40/.,  and  thereby  reduced  it  to 
60/.,  and  the  lord  sued  for  the  fine,  and  the  jury  finding  the  annual  value  of 
the  premises  30/.,  gave  a  verdict  for  60/.,  held,  that  the  lord  could  not  retain 
this  verdict,  but  must  be  nonsuited,  the  Court  being  of  opinion  that  'the 
assessment,  notwithstanding  the  remittitur  was  an  assessment  of  100/.,  and 
the  latter  part  of  the  entry  was  nothing  more  than  a  remission  of  the  pay- 
ment of  part  of  that  assessment ;  and  it  was  observed  in  this  case  that  much 
mischief  might  arise  to  copyholders,  if  similar  entries  were  permitted  to  be 
made  upon  the  court  rolls  of  manors. (x) 

4.  Demand,  Tender,  and  Payment  of  the  Fine. 

796.  After  a  regular  assessment  of  the  fine,  the  specified  sum  must  be 
formally  demanded  by  the  lord  or  his  steward ;(?/)  and  it  must  be  made  of 
the  specific  sum,  and  not  of  any  larger  amount,  otherwise  the  lord  cannot 
recover  at  law  ',{z\  but  if  the  lord  demand  more  than  he  is  entitled  to,  he 
may  re-assess  the  fine,  and  make  the  demand  de  novo  ;  so,  it  must  be  de- 
manded of  the  person  of  the  tenant. (a)  By  the  11  G.  4  &  1  W.  4,  c.  65, 
re-enacting  9  G.  2,  c.  29,  the  fine  must  be  demanded  of /ernes  covert  and 
infants,  by  the  lord's  bailiff  or  agent  by  note  in  writing,  signed  by  the  lord 
r*fi9R~!  ^'^  ^'^  steward,  and  left  with  the  infant  or  his  guardian,  *or  with 
L  -•  the  feme  covert  or  her  husband,  or  with  the  tenant  or  occupier  of 
the  copyhold. 

797.  Where  the  fine  is  certain,  the  heir  ought  to  tender  it  on  his  prayer 
to  be  admitted  ;(/>)  and  to  save  a  forfeiture,  it  seems  that  the  tender  should 
be  made  at  the  day  appointed  by  the  lord  for  the  payment  of  the  fine  assess- 
ed, and  that  a  tender  made  at  the  time  of  the  assessment  is  not  suflicient  ;(c) 
but  the  lord  cannot  refuse  admittance  because  the  fine  is  tendered  to  him, 
even  when  the  fine  is  certain  in  amount.(f/) 

Should  the  fine  be  unreasonable,  or  if  the  copyholder  has  good  cause  for 
thinking  it  to  be  so,  he  may  refuse  to  pay  it,  and  it  shall  be  no  cause  of  for- 
feiture,(e)  but  he  must  tender  what  he  conceives  to  be  due.(/) 

798.  A  fine  certain  ought  to  be  paid  immediately,  but  not  until  the  tenant 
is  actually  admitted,  for  admittance  is  the  cause  of  the  fine,  and,  therefore, 
the  lord  cannot  refuse  admittance  until  the  fine  is  paid  ;(^)  and  if  the  heir 
choose  to  waive  the  possession,  he  shall  pay  no  fine  ;(/i)  but  if  after  admit- 
tance the  tenant  refuse  to  pay,  the  fine  having  been  demanded,  such  refusal 
is  a  forfeiture, (i)  see  supra,  §  796 ;  and  as  to  the  provisions  for  the  pay- 

(t)  Lord  Northwick  v.  Stanway,  6  East,  56 ;  S.  C,  but  not  S.  P.,  3  B,  &.  P.  346. 

(y)  Trotter  v.  Blake,  2  Mod.  229.  (z)  Titus  v.  Perkins,  Skinn.  249. 

(fif)  Denny  v.  Lennnan,  Hob.  135.  (6)  Gardiner  v.  Norman,  Cro.  Jac.  617. 

(c)  lb.;  sed  qufere,  and  see  1  Scriv.  Cop.  419. 

{(1)  Hobart  V.  Hammond,  4  Co.  28 ;  S.  C.  nom.  Dalton  v.  Hamond,  Cro.  El.  779  ;  S.  C, 
Moor,  623  ;  Fish  v.  Rogers,  1  Roll.  Abr.  506. 

(e)  Hobart  v.  Hammond,  sup.  (/)  Gardiner  v.  Norman,  sup. 

ig)  Hobart  v.  Hammond,  sup.;  Baddelcy  v.  Leppingwell,  3  Burr.  1544;  Rex.  V.  Hen- 
don,  (Manor,  &c.)  2  T.  R.  485. 

(A)  1  Sid.  98.  (t)  Hobart  v.  Hammond,  sup. 


COMMON    COPYHOLDS.  429 

ment  of  fines  in  the  case  oi  femes  covert,  infants,  and  lunatics,  see  11  G.  4 
&  1  W.  4,  c.  65,  Dig.  P.  ii.  tit.  Courts,  (Equity.) 

799.  If  the  fine  be  uncertain,  a  copyholder  is  not  bound  to  pay  it  imme- 
diately, for  he  cannot  know  how  much  it  will  be,  and  if  the  lord  does  not  fix 
a  time  for  payment,  he  shall  have  a  convenient  tirae.(^)     A  custom  not  to 
pay  a  fine  till  *of  full  age  has  been  held  to  be  a  good  custom  ;(A  so,    ^ 
also,  a  custom  for  the  lord  to  seize  until  the  fine  is  paid.(m)  L         -^ 

In  some  manors  it  is  customary  not  to  take  the  fine  until  the  succeeding 
general  court,  but  it  seems  doubtful  whether  a  lord  or  steward  may  refuse 
to  accept  a  surrender  from  the  person  admitted  tenant,  or  to  admit  the  sur- 
renderee until  the  fine  is  paid.(?i) 

800.  The  fine  on  admittance,  and  also  the  steward's  fees  on  admittance, 
are  paj^able  by  the  purchaser  ;(o)  therefore,  held,  that  a  covenant  to  surren- 
der a  copyhold  to  a  purchaser,  and  to  do  all  acts  and  deeds,  &c.,  for  the 
perfect  surrendering  and  assuring  premises  at  the  costs  and  charges  of  the 
vendor,  is  not  broken  by  non-payment  of  the  admission  fine,  for  the  title  is 
perfected  by  the  admittance  of  the  purchaser  as  tenant,  the  fine  not  being 
due  until  after  admittance. (p) 

Where  by  the  custom  a  remainder-man  must  be  admitted  and  pay  a  fine, 
the  fine  is  not  payable  until  the  death  of  the  tenant  for  life  ^{(A  and  he  must 
come  in  within  a  reasonable  time  after  the  death,  otherwise  the  lord  maj'' 
seize  quosque,  &c.  ;(?•)  but  very  clear  evidence  is  required  to  establish  the 
lord's  right  to  a  full  fine  from  a  remainder-man  and  the  Courts  lean  to  the 
presumption  that  a  fine  paid  by  a  remainder-man  was  an  apportionment  only 
of  the  full  fine  assessed  on  the  admission  of  the  tenant  for  hfe.(r) 

5.  Recovery  of  the  Fine. 

801.  If  the  tenant  (not  being  a  feme  covert,  infant,  or  lunatic,  see  supra, 
§  798)  do  not  come  in  to  be  admitted  and  pay  his  fine,  after  the  usual  pro- 
clamations, the  lord  may,  in  all  cases,  seize  the  land  quosque,  &c.  ;  see  fur- 
ther as  to  *forfeiture  of  copyholds,  post.  So,  if  a  copyholder  refuse  ^ 
payment  of  a  fine,  debt  lies  against  him,(s')  and  see  further  as  to  in-  ["""^^J 
juries  and  their  remedies,  post,  under  that' title. 

(k)  Hobart  v.  Hammond,  sup. ;  Willowe's  case,  13  Co.  2. 

(I)  Champion  and  Atkinson,  3  Keb.  90. 

(m)  Jackman  v.  Hoddesdon,  Cro.  El.  351. 

(n)  1  Scriv.  Cop.  419  ;  3d  ed.,  800.  (o)  Drury  v.  Mann,  1  Atk.  95. 

(p)  Graham  v.  Sime,  1  East,  632. 

Iq)  Kitcli.  244 ;  Fitch  v.  Hockley,  4  Co.  23  a. 

(r)  Whitbread  v.  Jenny,  5  East,  531.  (s)  Grant  V.  Astle,  2  Dougl.  721. 


December,  1846. — 28 


430 


crabb'3  law  of  real  property. 


ITT.  Kflfcfs  an^  ajrrfots. 


§  S02.  What  is  properly  a  Relief,  or  other 
wise. 
RccoTerv  of  a  Relief. 

803.  Heriot  distinsruished  from  RelieC 

804.  Dcfiiiition  of  Heriot  Ser\ice. 
■When  due. 

605.  In  case  of  a  Lease. 

Not   due  before   commencement  ofi 
Lease  or  after  Determination. 

806.  Recovery  of  Heroit  Service  by  Sei- 

zure. 

807.  Recovery  by  Distress  or  Action. 
SOS.  Wlien  Heriot  Service  is  Extinct,  or 

otlierwisc. 
809.  What  is  Heriot  Custom. 
Customary  CompositicMi. 
Heriot  due  ou  IXath  of  Tenant 
Heriot  due  on  Death  of  Trustee. 


§  809.  Corporation  liable,  when. 
Widow  liable. 
SIO.  Due  in  case  of  Alienation. 

811.  When  not  due. 

On  Death  of  Stranger. 

812.  Not  due  on  the  Death  of  Joint-ten- 

ants. 

Or  Coparceners. 

Or  Tenant  tor  Life  and  Remainder- 
men. 

Or  Tenants  in  Common. 

813.  Other  Cases. 

814.  Loss  of  Heriot  Custom. 

No  Extinction  of  a  Heriot  Custom. 

815.  Recovery  of  a  Heriot  Custom. 

816.  Pleadinirs  in  Replevin  for  a  Heriot 

Service. 
What  Picas  are  bad- 


^  802.  Relief  was  a  feudal  burden  common  to  knight's  service  and  socage 
tenure,  which  was  payable  by  the  heir,  by  way  cf  fine  or  composition  with 
the  lord  for  taking  up  the  estate,  which  was  lapsed  or  fallen  in  by  the  death 
of  the  last  tenant.(/)  The  term  is  also  sometimes  applied  to  copyholds  ;(u) 
but  it  is  said  not  to  be  properly  a  relief,  but  an  alienation  fine ;  and  this  may 
be  either  by  tenure,  by  special  reservation,  or  by  custom. (j:) 

•The  remedy  for  a  reUef  if  it  be  by  tenure  is  distress  of  common 
[*629J  j.jgi^j.^y^  Y^^^^^  jf  ^  be  by  custom,  there  can  be  no  distress  unless 
there  be  a  special  custom  to  warrant  it  ;(z)  an  action  of  debt,  however,  lies 
in  such  case.(r) 

803.  -A.  heriot  is  a  bunlen  peculiar  to  this  base  tenure,  and  it  is  distin- 
jTuished  from  the  relief  with  which  it  is  frequently  confounded  in  the  books, 
m  this  respect,  that  the  heriot  \vas  payable  on  the  determination  of  the 
tenancy,  but  the  relief  on  the  accession  of  the  heir.(a)  The  heriot  is  the 
best  beast  or  other  thing,  due  to  the  lord  on  the  death  of  the  tenant,  and  is 
distincruished  into  heriot  service,  that  is,  heriot  by  tenure  and  heriot  custom, 
which  differ  from  each  other  in  the  manner  in  which  they  become  due,  or 
are  lost  or  recovered,  and  in  other  particulars. 

1.  Heriot  Service. 

804.  The  heriot  service  \\-as  originally  a  reservation  by  the  lord,  arising 
from  the  tenure  subsisting  between  him  and  the  tenant,  and  lies  in  render. 

It  is  said  to  be  due  only  upon  the  death  of  the  tenant  in  fee  simple  ;(6) 


(t)  2  Comm.  65.  (u)  Manxel's  case,  Plowd.  91. 

(x)  Hun^rford  v.  Havrland,  3  Bulstr.  323 ;  S.  C,  2  RoU.  Rep.  370  ;  S.  C,  W.  Jo.  132  ; 
S.  C,  Latch,  37  ;  Gilb.  Ten.  173. 

(y)  Co.  Cop.,  s.  31,  tr.  45  ;  Oenel's  case,  4  Co.  47  b. 

(«}  Hun^crtbrd  v.  Hawland,  ante,  620,  n.  'z). 

(o)  Fitzh.  Heriot,  pi.  6';  Co.  Cop.,  s.  25,  tr.  33.  (b)  21  H.  7,  13  a. 


COMMON    COPYHOLDS.  431 

but  it  may  be  reserved  upon  the  grant  of  any  less  estate,  as  upon  a  lease  for 
life,  after  the  death  of  tenant  for  life  ;(c)  so,  if  a  lease  be  to  A.  for  life,  after- 
wards to  B.  for  life,  remainder  to  C.  for  life,  a  heriot  may  be  reserved  after 
the  death  of  each  of  them  ;[d'^  so,  if  a  lease  be  for- years,  if  two  lives  continue, 
it  may  be  reserved  after  the  death  of  each  life;(€)  so,  if  tenant  sJiens  a 
parcel,  the  heriot  shall  be  multiplied, (/)  and  if  the  lord  be  seised  of  a 
heriot  by  the  alienee,  the  same  continues,  though  the  tenant  re-purchase  this 
parcel ;(/)  so,  heriot  service  thus  reserved  *upon  a  lease  is,  like  r-,.(.o(\~\ 
rent,  incident  to  the  reversion,  and  it  shall  go  with  the  reversion  to  i-  "  '-' 
the  heir,  and  not  to  the  executors. (^)  or  to  the  grantee  of  the  manor .(j?)  It 
is  said,  that  the  heriot  being  confined  to  personal  chattels,  is  no  charge  on 
the  land,  any  more  than  a  relief  or  a  fine  on  admiuance  to  copj'holds  ;(/»]  but 
this  can  be  said  only  of  heriot  custom, (£j  or  where  there  is  no  express  reser- 
vation, see  post,  §  814. 

805.  If  there  be  a  lease  for  lives,  rendering  rent,  and  a  heriot  upon  every 
death,  and  afterwards  the  manor  is  leased  for  years,  the  heriot  goes  with  the 
reversion  to  the  lessee  ;(^)  so,  if  a  lease  be  for  ninety-nine  5'ears,  if  two  lives 
so  long  continue,  to  commence  after  a  death,  or  surrender,  &c.,  of  a  former 
lease,  reserving  a  heriot  after  the  death  of  each  life,  if  either  dies  before  the 
lease  commences,  no  heriot  shall  be  paid  :[l)  so,  for  the  last  life  no  heriot 
can  be  seized,  or  levied  by  distress,  but  only  b}'  action  upon  the  contract, 
for  by  his  death  the  term  is  determined,  sed  quiere.{iny 

806.  Heriot  service  lies  in  render,  it  may,  therefore,  be  recovered  either 
by  seizure,  distress,  or  action. 

Heriot  service,  when  part  of  the  ancient  tenure,  may  be  seized,  or  the 
lord  may  distrain  for  it  at  his  pleasure  ;(n)  and  it  may  be  seized  either  in  or 
out  of  the  manor,  for  the  property  vests  in  the  lord  immediateh'  on  the  death 
of  the  tenant,  and  therefore  he  may  seize  the  property  anj-  where,  just  as  he 
ma)'  his  own  property  :(o)  and  for  this  reason  it  has  been  holden,  that  the 
lord  may  seize  a  heriot  in  the  *hands  of  the  vendee,  unless  sold  in  jsRon 
market  overt  :{p)  but  the  lord  can  seize  no  other  than  the  tenant's  L  ^ 
on-n  beast, (j)  although  he  ma\-  distrain  any  man's  beast  on  the  land  ;[q)  so, 
where  on  a  lease  for  three  lives,  or  ninety-nine  years  determinable  on  three 
lives,  there  is  reserved  for  a  heriot  upon  the  death  of  each  life  his  or  their 
best  beast,  and  the  lease  is  assigned,  and  then  one  of  the  lives  dies,  the  beast 
of  the  assignee  cannot  be  seized,  though  the  lessor  may  distrain  upon  the 
land  for  the  best  beast  of  the  deceased  tenant,  (^r) 

(c)  Osbnrne  v.  Stare,  2  Lutw.  1367.  {d^j  Lanvcn  v.  Came,  2  Saund.  167. 

(e)  Winch,  47  :  2  Lutvr.  1367.  {/)  Fiiz.  Heriot,  pL  1. 

(?)  Lanyon  r.  Carne,  2  .Saund.  167. 

(A)  Co.  Cop.,  s.  24,  tr.  24 ;  Fitz.  Avowrie,  233. 

(0  See  3  H.  7,  10  b  ;  cited  2  Walk.  C-op.  142,  n.  (c)  (i)  Winch,  47.  57. 

(/)  Lanyon  v.  Came,  sup.  (m>  2  Lutw.  1368. 

(n)  Woodland  v.  Mantel,  Plovrd.  96;  Odihara  v.  Smith,  2  Cro.  EI.  589;  S.  C.  Br. 
Hariot,  2;  S.  C,  Moor,  540,  reversing-  the  judg^raent  in  C.  P. ;  And.  298;  Austin  v. 
Bennet,  1  Salk.  356 :  Parker  v.  Gag-e,  1  Show.  81 ;  Edwards  r.  3Ioseley.  Willes,  192. 

(0)  Woodland  t.  Mantel,  sup.  ( p)  Kitch.'262. 

(9)  Dy.  199  b,  pi.  57  ;  Ow.  146 :  Major  v.  Brandwood,  Cro.  Car.  260. 

(r)  Lanyon  v.  Carne,  2  Saund.  165 ;  S.  C.  nom.  Lanjan  t.  Came,  1  Lev.  294  ;  S.  C. 
nom.  Lion  v.  Garew,  1  Yentr.  91  ;  S.  C.  nom.  Hangan'^v.  Cawe.  1  Sid.  437 ;  see  also  2 
Keb.  505. 


432  crabb's   law  of   real  property. 

807.  If  a  heriot  be  reserved  upon  a  lease  or  by  deed,  since  the  statute 
Quia  Emptor es,  (under  Avhich  no  new  tenures  can  be  created,)  payable  by 
tenant  in  fee,  it  is  considered  as  rent,  and  can  only  be  recovered  like  rent 
by  distress,  or  action  of  covenant  or  debt,  but  cannot  be  seised  ;(s)  and  the 
lord  or  lessor  may  distrain  for  a  heriot  the  cattle  of  any  stranger  that  are 
upon  the  land,  and  retain  them  until  the  heriot  be  satisfied  •,{t\  and  if  not 
replevied,  the  lord  may  now  sell  them  under  the  2  W.  &  M.  c.  5,  see  Dig. 
p.  ii.  tit.  Distress  ;  and  if  the  tenant  brings  replevin,  the  avowry  need  not 
show  the  particular  thing  to  which  he  is  entitled  as  a  heriot ;(/)  but  if  the 
grant  be  lost,  the  lord  in  avowry  must  prescribe,  which  supposes  a  grant  ;(w) 
but  he  need  not  now  allege  seisin  in  himself  or  his  ancestor,  he  may  avow 
generally  under  the  11  G.  2,  c.  19,  s.  22;(.r)  but  the  lord  cannot  distrain 
for  heriot  service  out  of  the  manor  or  lands  demised. (3/)  So,  an  action  of 
debt  or  covenant  lies  to  recover  a  heriot  reserved  upon  a  lease. (^) 

r^pqo-i  *808.  Heriot  service  shall  be  extinct  by  unity  of  possession  ;(«) 
L  -'  so,  if  the  lord  purchase  parcel  of  the  land,  because  it  is  entire  and 
valuable  \{b\  sed  seciis  as  to  the  heriot  custom,  for  if  the  custom  of  the 
manor  be,  that  upon  the  death  of  every  tenant  of  the  manor,  Avho  dies  seised 
of  any  lands  held  of  the  same  manor,  the  lord  shall  have  a  heriot ;  although 
the  lord  purchases  part  of  the  tenancy,  yet  he  shall  have  a  heriot  by  the 
custom  of  the  manor  for  the  residue. (c) 

So,  if  a  tenant  makes  a  settlement  upon  his  son  in  marriage,  it  avoids  the 
heriot,  and  is  not  fraudulent  within  the  13  El.  c.  5,  see  Dig.  p.  ii.  tit. 
Frauds  ;(<?)  but  where  a  tenant,  holding  of  several  lords,  make  a  fraudulent 
gift  of  his  beasts,  any  lord  may  sue  on  the  13  El.  for  the  value  of  all  the 
beasts,  Cressweli  v.  Cokes, (e)  S.  C,  2  Leon.  6,  where  it  is  said  that  he  shall 
recover  but  the  value  of  one. 

2.  Heriot  Custom. 

809.  A  heriot  may  be  due,  by  the  custom  of  a  manor,  from  every  tenant, 
which  is  called  heriot  custom ;(/)  so,  there  may  be  a  customary  composi- 
tion in  money,  as  ten  or  twenty  shilling  in  lieu  of  a  heriot,  but  a  composition 
of  this  kind  must  be  supported  by  immemorial  usage  ;(g-)  a  new  composition, 
therefore,  will  not  be  binding  on  either  lord  or  tenant, (§■) 

But  the  tenant  must  die  tenant  of  the  lord,  yet  it  matters  not  whether  he 
be  tenant  in  fee,  for  life,  or  years  ;(/j)  so,  by  custom,  a  heriot  may  be  due 
upon  the  deaths  of  some  tenants  and  not  upon  the  deaths  of  others  within 

(s)  Edwards  v.  Moselcy,  Willes,  192.  (t)  Major  v.  Brandwood,  sup. 

(w)  21  H.  7,  13  a,  15  a  ;  Kitch.  262,  263. 

(x)  See  2  Wms.  Saund.  168  a,  n.  (!) ;  also  Di^,  p.  ii.  tit.  Distress. 
(y)  2  Inst.  132;  Austin  v.  Bcnnet,  1   Salk.  356;  see  also  Osborn  v.  Sture,  2  Lutw. 
1367;  S.  C.  110m.  Orborne  v.  Steward,  3  Mod.  231. 
(«)  Lnnyon  v.  Carne,  2  Saund.  167,  &c.,  sup. 
i")  14  H.  4,  5  a,  cited  Bro.  Heriot,  8. 

(6)  1  Inst.  149,  b. ;  Talbot's  case,  8  Co.  104,  (c)  Id.  106. 

(f/)  Tyre  v.  Littleton,  2  Brownl.  187.  («=)  Dy.  151. 

(/)  Kitch.  262  ct  seq. ;  Co.  Cop.,  s.  24,  tr.  24,  25. 
(^;  Co.  Cop.,  s.  31,  tr.  46  ;  2  Comm.  424.  (A)  Bro.  Harlot,  I. 


COMMON    COPYHOLD.  433 

the  same  manor,  as  the  heriot  is  due  in  respect  of  the  land  ;(i)  so,  if  a  man 
dies  tenant  of  several  heriotable  tenements,  he  shall  pay  several  heriots  ;(/) 
but,  by  the  custom  of  some  manors,  one  *heriot  only  is  due  in  such  |-ji.f»qq-i 
case  •,[k)  so,  a  heriot  shall  be  due  ahhough  the  testator  devises  all  L  -' 
his  goods  ;(/)  so,  as  the  heriot  is  due  on  the  death  of  the  tenant,  or  the  person 
in  legal  possession,  it  is  due  on  the  death  of  the  trustee,  and  not  of  the  cestui 
que  trust  ;(m)  so,  it  is  due  on  the  death  of  the  reversioner,  both  as  to  free- 
hold and  copyhold  estates,  for  he  is  equally  in  the  seisin  as  a  person  in  pos- 
session, (n) 

So,  it  seems,  that  though  as  a  rule  a  corporation  can  never  die,  and 
therefore  a  heriot  is  not  due  in  respect  of  copyhold  lands  in  their  possession, 
yet,  by  special  custom,  a  heriot  may  be  due  on  the  natural  death  or  avoid- 
dance  of  its  head  ;(o)  so,  on  the  death  of  a  widow  entitled  to  her  free  bench, 
the  lord  is  entitled  to  a  heriot.  (js) 

810.  So,  by  custom,  a  heriot  is  due  upon  the  determination  of  an  estate 
for  \\[e,{ji)  or  upon  the  determination  of  an  estate  for  }'ears;(^)  so,  by  cus- 
tom, it  may  be  due  upon  the  surrender  or  alienation  of  the  tenant  ;(r)  but  if 
the  surrenderor  die  before  the  admittance  of  the  surrenderee,  it  will  be  due 
on  the  death  of  the  former,  the  latter  not  being  the  lord's  tenant  until  admit- 
tance ;(s)  so,  if  a  tenant  enfeoffs  several  parts  of  heriotable  lands,  each  shall 
pay  a  heriot,  for  they  shall  be  multiplied  \{t)  so,  if  a  tenant  enfeoffs  the  lord 
of  part  of  heriotable  land,  the  heriot  custom  shall  not  be  extinct  ;(m)  so,  if 
land  escheats,  &c.  and  afterwards  is  re-granted,  for  heriot  custom,  it  is  said, 
is  not  extinct  by  unity  of  possession,  but  see  ante,  §  808,  as  to  heriot  service. 
So,  it  seems,  that  the  heriot,  in  case  of  disseisin,  (or  rather  *of  ouster  p^/^q^i 
as  regards  copyholds,)  will  be  due  on  the  death  of  the  disseisee,  not  >-  -' 
of  the  disseissor.  (ar) 

811.  Though  a  custom,  that  the  lord  shall  have  the  best  beast,  &c.  of  his 
tenant  who  dies,  is  good,  yet  a  custom  or  prescription  to  have  a  heriot  of 
every  stranger  dying  within  a  manor  is  bad,  because  it  cannot  have  a  rea- 
sonable commencement  between  the  lord  and  a  stranger,  though  it  may 
between  the  lord  and  his  tenants  \{y)  so,  a  custom  or  prescription  to  have  a 
heriot,  that  is,  the  best  beast  of  his  tenant,  and  if  it  be  eloigned  before  the 

(t)  Kitch.  262  ct  seq. 

{k)  2  Watk.  Cop.  155,  n.  (1,)  278.  298  ;  1  Scriv.  Co.  459,  3d  ed. 

(I)  1  Inst.  185,  b, 

(m)  Trinity  College  (Camb.)  v.  Browne,  1  Vcrn.  441  ;  Smartle  v.  Penhallow,  1  Ld. 
Raym.  1000. 

(n)  Br.  Hariot,  1 ;  Br.  Avowrie,  142 ;  Br.  Entre  Cong.,  pi.  20 ;  Butler  v.  Archer,  0\v. 
152;  2  Watk.  Cop.  149. 

(o)  1  E.  2.  14  a ;  Long's  case,  5  Ed.  4.  72  b ;  Fitz.  Hariot,  7 ;  2  Watk.  Cop.  155  ;  1 
Scriv.  Cop.  446,  3rd  ed.  (  p)  Gilb.  Ten.  172  ;  2  Watk.  Cop.  137. 

(7)  21  H.  7.  15  b ;  Kitch.  266  ;  Bro.  Heriot,  5 ;  Kcb.  80. 

(»•)  3  H.  6.  45  b.  (s)  Kitch.  265. 

It)  Bruerton's  case,  6  Co.  1.  (h)  8  Co.  106  b. 

(x)  Co.  Cop.,  s.  56,  tr.  129  ;  44  Ed.  3.  13  ;  7  H  4.  17  ;  Kitch.  263,  264 ;  Bro.  Hariofa, 
1  ;  Norrice  v.  Norrice,  March,  23  ;  S.  C.  nom.  Norris  v.  Norris,  2  Roll.  Abr.  2  ;  see  also  2 
Watk.  Cop.  146,  147. 

(V)  Parton  v.  Mason,  Dy.  199  b  ;  Plowd.  95 ;  Dav.  33  ;  Parker  v.  Combleford,  1  Cr.  El. 
125 ;  2  And.  153, 


434  craee's  law  or  rial  property. 

lord  seizes  it,  that  then  he  may  take  the  beast  of  any  other  person  levoTii 
and  couchant  upon  the  land,  is  unreasonable  and  void.[z) 

812.  A  heriot  due  on  the  death  of  a  tenant  is  only  where  he  is  solely 
seised,  and  not  where  he  is  seised  jointly  with  another,  for  joint-tenants  being 
seised  per  mie  et  per  tout,  make  altogether  bat  one  tenant  to  the  lord,  be 
there  ever  so  many  of  them,  therefore,  no  heriot  is  due  until  the  death  of 
the  last  surviving  tenant  ;(a)  and  the  rule  is  the  same  with  respect  to  copar- 
ceners, who  likewise  make  but  one  tenant  ;'.b)  so,  where  a  grant  is  made 
of  lands  to  one  for  hfe,  with  remainder  to  another  for  life,  and  remainder  to 
a  third  in  fee,  the  particular  interest  and  the  remainder  form  but  one  tenant, 
and  consequently  no  heriot  is  due  until  the  death  of  the  survivor  of  them 
all.(c)  On  the  other  hand,  tenants  in  common  being  solely  seised,  a  heriot 
is  due  to  the  lord  on  the  death  of  each  of  them  ;(<£)  but  when  their  shares 
*are  re-united  in  the  same  person,  they  form  but  one  tenement,  and 
L         -  consequently  only  one  heriot  is  due  in  respect  of  them.(c) 

81.3.  A  heriot  is  not  due  on  the  death  of  a  person  having  only  an  interesse 
termini,  as  where  a  lease  is  made  to  two  for  ninety-nine  years,  if  three  per- 
sons should  so  long  live,  to  commence  at  the  expiration  of  an  existing  lease, 
at  a  certain  rent,  and  rendering  a  heriot  after  the  death  of  the  lessees,  or 
either  of  them,  and  one  of  the  lessees  die  before  the  expiration  of  the  first 
lease,  a  heriot  could  not  be  demanded,  as  there  would  be  no  reversion  until 
the  commencement  of  the  term,  and  for  want  of  a  reversion  the  reservation 
could  not  take  effect. (/) 

In  Smartle  v.  Penhallow,(g')  a  heriot  was  held  not  to  be  due  on  the  death 
of  an  assignee  of  a  bankrupt,  but  on  that  of  the  bankrupt  himself. 

814.  If  the  tenant  dies,  having  (without  fraud)  no  beasts,  then  the  lord 
sliali  lose  his  heriot,(A)  and  the  best  beast  must  belong  to  the  tenant  at  the 
time  of  the  death  or  alienation  ;(t)  and  this  may  apply  to  heriot  service  as 
well  as  to  heriot  custom,  for  it  is  said,  "It  is  a  casual  thing  if  the  lord  have 
the  heriot,  unless  such  custom  or  tenure  be  to  have  the  best  beast,  or  such 
a  sum;" (A-)  but  if  the  tenant  had  conveyed  away  the  beasts  fraudulently, 
then  the  13  El.  c.  5,  has  provided  a  remedy.  (A-) 

Unity  of  possession  does  not  work  an  extinction  of  a  heriot  custom,  as  it 
does  in  the  case  of  heriot  service,  see  ante,  §  804. 

^       *815.  The  property  in  a  heriot  by  custom  vests  immediately  in 
L*       -s  the  lord  on  the  death  of  the  tenant,  or  on  an  alienation  by  him,  and 

(«)  Parton  r.  Mason,  sap. ;  X.  BendL  112,  pL  147  ;  Moor,  16,  pL  58. 

(o)  Kitch.  264  ;  Butler  v.  Archer,  Ovr.  152.  «^    , 

(&)  Lib.  Ass.  210  b  ;  3  Leon.  13;  Ca.  30  ;  Eastwood  v.  VTinke,  2  P.  Wms.  614 ;  2  Watt. 

Cop.  14^,149.  ^         ^^        .ot 

(c)  Keilw.  &3,  Bed  qosere.  (i)  Attree  v.  Scott,  G  East,  4*1. 

(e)  Garland  v.  Jekyl,  273;  Holloway  v.  Berkeley,  G  B.  i  C.  2;=  .S.  C,  9  D.  &  P^  83. 
(f    Lion  V.  Carew,  1  Vent  91  ;  .S.  C.  nom.  Lanjon  v.  Came,  2  Saund.  165  ;  S.  C.  nom. 

Langun  v.  Came,  1  Lev.  294 ;  S.  C.  nom.  Lemal  r,  Cara,  2  Keb.  505  ;  S.C.  nom.  Hangon 

and  C'awe,  1  Sid.  437. 

(g)  2  Ld.  Ravm.  1002  ;  S.  C ,  1  Salt  188  ;  S.  C,  6  Mod.  63.  ,      ^     ,  „„     ^.,  ^ 

(A;  Shaw  T.  Taylor,  4  Hob  176 ;  S.  C,  Hatt,  4  ;  Carter,  66 ;  see  a.so  Dy.  1 99  :  Kitch. 

264.  (i;  Kitch.  267  ;  GUb.  Dist,  146.  {k.  Per  Curiam,  Hutt.  4. 

■■Eng.  Com.  Law  Reps.  liu.  97. 


COMMON    COPYHOLDS.  435 

it  seems  that  it  lies  in  prender,  therefore  the  lord  may  seize  it  in  any  place 
either  in  or  out  of  the  manor,(/)  but  he  cannot  distrain  for  it,(m)  for  a  pre- 
scription to  distrain  for  his  own  goods  is  not  good  ;(n)  he  cannot,  however, 
seize  the  beasts  of  another,(o)  and  a  custom  to  take  the  beast  of  another  upon 
the  land,  if  the  heriot  be  eloigned,  is  void  ;{p)  so,  if  the  lord  seizes  the  worst 
beast  for  the  best,  he  must  be  content  with  his  election,  and  cannot  after- 
wards seize  another  ;{q\  and  if  a  heriot  be  eloigned  so  that  the  lord  cannot 
seize,  he  may  have  detinue  or  trover  against  him  who  detains  it,(r)  or,  ia 
certain  cases,  assumpsit,  (s) 

816.  If  the  tenant  brings  replevin,  the  lord  or  lessor  may,  in  the  case  of 
heriot  service,  avow  generally  under  the  11  G.  2,  c.  19,  s.  22  ;  sed  secus  as 
to  heriot  custom,  for  this  has  been  held  not  to  be  within  the  statute, (^)  there- 
fore, in  replevin  as  well  as  in  trespass, if  the  defendant  avows  or  justifies  for 
heriot  custom,  he  ought  to  allege  the  seisin  of  himself  and  of  the  tenant,  the 
custom  for  a  heriot,  the  death  of  the  tenant,  and  seizure  of  the  heriot  ;(m) 
and  it  is  not  sufficient  to  allege  a  custom  to  take  the  best  beast,  without  say- 
ing for  a  heriot,  or  in  the  name  of  a  heriot  ;(x\  so,  evidence  of  a  custom  for 
the  homage  to  assess  a  certain  sum  of  money  as  a  heriot,  and  that  such 
assessment  had  always  been  made  with  reference  to  the  best  chattel  of  the 
tenant,  would  not  support  an  avowry  for  a  heriot  in  kind;(?/)  so,  a  ^^^^-, 
*plea  which  does  not  set  out  the  custom  with  all  exceptions,  has  L  J 
been  held  bad  ;[z)  so,  where  the  custom  set  forth  was,  that  the  lord  should 
have  the  best  beast  at  the  tenant's  death,  and  the  custom  proved  that  he 
should  have  the  best  beast  or  good,  the  variance  was  held  fatal ;(«)  so,  where 
the  plea  stated  a  custom  in  the  manor,  that  the  lord,  from  time  immemorial 
until  the  division  of  a  certain  tenement  into  moieties,  had  been  accustomed 
to  take  a  heriot  upon  the  death  of  every  tenant  dying  seised,  and  since  the 
division,  had  been  accustomed  to  take,  on  the  death  of  every  tenant  dying 
seised  of  either  of  the  moieties,  a  heriot  for  each  moiety,  held,  that  this  must 
be  taken  to  be  one  entire  custom,  and  not  two  distinct  customs,  the  one  ap- 
plicable to  the  tenement  before,  and  the  other  after  the  division,  and  being 
laid  to  be  an  immemorial  custom,  it  is  disproved  by  evidence  that  the  division 
was  made  within  memory. (6) 

(/)  Keilw.  82  a,  84  b. 

(m)  Id.  167;  Bro.  Hariot,  2.  G,  7  ;  Parker  v.  Gage,  1  Show.  81 ;  Austin  v.  Bennet,  1 
Salk.  356.  (n)  Bro.  Hariot,  2.  6,  7. 

(o)  Major  v.  Brandwood,  Cro.  Car.  260. 

Ip)  Dy.  199  ;  Bendl.,  pi.  147 ;  2  Brownl.  90.  (7)  Bro.  Hariot,  11  ;  Hod.  60. 

(r)  Bro.  Hariot,  619  ;  Kitch.  263.  267,  (s)  Garland  v.  Jekyl,  2  Bing.  292.« 

(0  Lloyd  V.  Winton,  2  Wils.  28. 

(m)  Co.  Ent.  613  a;  Baldwin  v.  Noakes,  2  Lutw.  1309,  1310. 
(x)  Dy.  199  b.  (y)  Parkin  v.  Redcliffe,  1  B.  &  P.  283. 

(z)  Griffin  v.  Blandford,  Cowp.  62,  (a)  Adderley  v.  Hart,  1  B.  &.  P.  394,  n,  (a). 

(6)  King.^tnill  v.  Bull,  9  East,  185, 

"Eng.  Com.  Law  Reps,  ix.  412. 


436  crabb's  law   of   real   property. 

IV.  2:<t"art).s5)fp. 
§  817.  In  socage  Tenure. 


§  817.  Wardship  was  properly  an  incident  to  tenure  by  knight's  ser^ace, 
and  still  is  so  to  tenure  in  socage  ;  but  the  lord  cannot  appoint  a  guardian  of 
common  right  to  an  infant  copyholder  ;(c)  nor  are  copyholds  within  the  12 
C.  2,  c.  24,  as  to  the  appointment  of  guardians  ;(f/)  but,  by  custom,  the 
custody  shall  be  to  the  lord,  as  to  the  copyliolds,  for  the  prejudice  that  may 
otherwise  be  to  the  lord,  and  for  the  meanness  of  the  estate  ;(c/)  and,  by 
custom,  the  lord  may  assign  one  to  take  the  profits  of  copyhold  descended 
to  an  infant  during  his  nonage,  to  the  use  of  the  assignee,  without  render- 
-.  ing  *an  account  ;(e)  and  where,  by  the  custom  of  the  manor,  the 
L  -^  bailiff  of  a  manor  is  to  have  the  wardship  of  the  copyhold  heir, 
being  under  the  age  of  fourteen,  such  a  guardian  shall  neither  be  admitted 
nor  pay  a  fine,  because  he  is  but  a  farmer  of  the  profits,  and  that  not  in  his 
own  right,  but  in  right  of  him  to  whom  he  is  guardian.(/) 


V.  Hsc!)cat. 
§  818.  What  is  an  Escheat. 


§  818.  Escheat  is  a  term  altogether  of  feudal  import,  signifying  a  return 
of  the  land  to  the  original  grantor  or  lord  of  the  fee ;  an  escheat,  therefore, 
is  a  fruit  of  seignory,  which  is  vested  in  the  lord  by  inheritance,  except  in 
cases  of  high  treason,  where  all  lands  are  forfeited  to  the  Crown ;  so,  where 
the  tenant  is  guilty  of  felony  only,  that  is,  felony  punishable  with  death, (,§■) 
the  queen  is  entitled  to  the  land  for  a  year  and  a  day,  see  further  as  to  title 
by  escheat,  post.  Title  to  Things  Real. 


III.  Demise  of  Copi>holtij5. 

The  grant  of  copyholds  comprehends  the  following  particulars  : — 

1.  Who  may  grant  copyholds. 

2.  How  copyholds  may  be  granted. 

3.  To  whom  grants  of  copyholds  may  be  made. 

4.  Of  what  things  grants  may  be  made. 

5.  Construction  of  grants. 

6.  How  the  power  of  granting  copyholds  may  be  lost  or  suspended. 

(c)  2  Lutw.  1190.  ((f)  Clench  v.  Cudmore,  .3  Lev.  3[)5  ;  P.  C,  2  Lutvv.  118. 

(e)  1  Leon.  266;  Ca.  357.  (/)  Co.  Cop.,  s.  56,  tr.  128. 

(g)  2  Inst.  38. 


COMMON    COPYHOLDS. 


437 


*I.  SJyjo  mau  flraiit  Hantis  i)»  ffops- 


§  819.  Grants   may   be   made  by  Persons 
generally. 
By  Bishops,  &c. 
By  the  Queen  Consort. 

820.  Grants  by  Lords  having  particular 

Estates. 

821.  Grants,  when  valid. 
Re-grant  according  to  Custom. 

822.  Grantor  must  be  Lord. 


[*C39] 


§  822.  When  Grants  arc  void. 
833.  Grants  in  other  Cases. 

824.  Delegated  Authority. 
Executors  may  make  Grants. 
Grants  by   the   Steward   as    by 

Lord. 

825.  Grants  by  the  Queen's  Steward. 

826.  Grants  by  Under-stewards,  &c. 


the 


§  819.  Every  lord  of  a  manor  having  a  lawful  estate  therein,  whether  in 
fee,  in  tail,  for  life,  years,  or  at  will,  may  make  voluntar}^  grants  of  such 
lands  as  come  into  his  hands  by  escheat  or  otherwise,  and  such  o-rants  shall 
bind  those  who  have  the  inheritance, (A)  for  these  grants  derive  their  force 
and  effect,  not  from  the  lord,  but  from  the  custom  of  the  manor ;(/)  if,  there- 
fore, a  husband  seised  of  a  copyhold  manor  in  right  of  his  wife  grant  a 
copyhold,  this  shall  bind  the  wife  and  her  heirs,  notAvithstanding  her  cover- 
ture, for  the  copyholder  is  in  by  custom  of  the  manor  ;(/c)  but  the  grant 
must  be  made  in  the  name  of  the  husband  and  wife ;(/)  so,  a  grant  made 
by  an  infant  is  good,(m)  or  an  idiot,  or  a  lunatic, (n)  for  the  law  doos  not 
regard  either  the  person  of  the  lord,  nr  the  quantity  of  his  estate  ;  so,  there- 
fore, being  an  outlaw,  or  excommunicate,  will  not  disable  him  to  make 
voluntary  grants,  if,  in  the  case  of  outlawry,  between  the  awarding  the  exi- 
gent and  the  attainder  ;(o)  so,  a  guardian  in  socage  ;(j5)  so,  a  grant  made 
by  a  bishop,  prebend,  parson,  is  good,  and  in  the  case  of  a  bishop  will  bind 
the  queen  on  a  vacancy  of  the  see  ;(^)  so,  if  the  queen  consort  be  tenant 
*for  life  of  a  manor,  she  may  grant  it  by  copy,  and  such  grant  by  ^  ,.,(,-, 
the  custom  of  the  manor  shall  bind  the  king  himself,  for  she  was  •-  -' 
domina  pro  tempore.{r) 

820.  So,  as  to  the  quantity  of  his  estate,  though  the  lord  has  only  a  par- 
ticular interest  in  the  manor,  he  may  grant  by  copy,  and  though  the  estate 
granted  by  him  may  not  only  continue  longer  than  his  own  estate  in  the 
manor,  but  even  though  the  estate  granted  may  not  come  into  possession 
during  the  existence  of  his  own  estate,  thus  tenant  in  dower  of  a  copyhold 
may  grant  in  reversion,  and  it  shall  bind  the  heir  after  her  death  ;(s)  so,  a 
guardian  in  socage  may  grant  copyholds  in  reversion,  and  it  shall  bind  the 
ward  though  it  come  not  into  possession  during  his  infancy. (/j     Whether  a 


(A)  4  Co.  23,  b. ;  1  Inst.  58,  b. 

(0  4  Co.  24,  a.  (A)  4  Co.  23,  b;  8  Co.  63. 

(I)  Shoplane  v.  Roydler,  Cra.  Jac.  99 ;  Co.  Cop.,  s.  34,  tr.  68. 
(m)  Co.  Cop.,  s.  34.  (n)  Blewet's  case,  Le}-,  47,  48. 

(o)  Co.  Cop.,  s.  34,  tr.  71.  (p)  Osborne  v.  Garden,  Plow.  293. 

(q)  4  Co.  22  a,  23,  b. ;  Nov,  41.  (r)  4  Co.  23,  b. 

(s )  Gay  V.  Kay,  Cro.  El.  661 ;  S.  C ,  1  Roll.  Abr.  499  ;  see  also  Godb.  135  ;  Ow.  4. 
(/)  Shoplane   v.  Roydler,  Cro.  Jac.  55  ;  see  also  Scopland  v,  Rydler,  Godb.  143;  Ow, 
115;  1  Roll.  Abr.  499. 


438  crabb's   law   of   real   property. 

lessee  for  years  may  grant  copyholds  in  reversion,  unless  the  reversion 
happen  before  his  estate  for  years  is  ended,  is  not  so  settled  ;(t<)  but  the 
better  opinion  appears  to  be  that  there  ought  to  be  a  custom  to  enable  the 
lord  to  grant  copyholds  in  reversion  ;(u)  so,  on  the  same  principle  that  the 
smallness  of  the  lord's  estate  makes  no  ditference,  grants  by  tenant  at  will 
of  a  manor,  and  tenant  by  statute  merchant,  staple,  or  elegit,  are  good,  (a:) 

821.  But  two  things  are  necessary  to  the  validity  of  such  grants  : — 

First,  that  there  being  nothing  but  custom  to  warrant  a  grant  by  copy, 
such  custom  must  be  strictly  pursued  as  to  the  estate,  customs,  services,  and 
tenure,  else  it  is  not  the  estate  demised  before. (y)  Therefore,  although  if 
there  be  a  copyholder  in  fee,  the  lord  may  release  part  of  the  services  with- 
out  "prejudicially  affecting  the  copyholder's  estate,  as  there  appears 
L  -"in  such  case  to  be  an  old  estate  ;  yet,  when  the  lord  grants  a  new 
estate  by  copy,  this  being  against  common  right,  and  warranted  only  by 
the  custom,  such  custom  to  bind  the  heir  must  be  strictly  pursued, (~)  conse- 
quently, a  person  having  but  a  particular  estate  in  the  manor  cannot 
grant  a  copyhold  by  parcels,  or  demise  part  and  retain  the  residue  him- 
self, (a) 

So,  where  lands  have  come  into  the  hands  of  the  lord  by  escheat  or  other- 
wise, the  lord  upon  a  re-grant  of  the  same  cannot  diminish  the  ancient  rent 
and  services  ;(i)  it  seems,  however,  that  he  may  reserve  a  greater  rent;(c) 
but,  as  a  rule,  he  cannot  make  the  minutest  variation  in  the  grant,  for  that 
were  to  make  a  new  copyhold  ;((A  and  it  seems  doubtful  whether  a  lord  may 
re-grant  copyholds  in  separate  parcels  at  apportioned  rents,  unless  where  a 
copyhold  of  six  acres,  which  has  been  ever  demised  for  6s.  rent,  has 
escheated  to  two  coparceners,  and  one  grants  three  acres,  reserving  36'.  pro 
rata,  which  is  a  perfect  reservation  ;(e)  see  also  Lord  Mountjoy's  case,(/) 
also  1  Watk.  on  Cop.  282 ;  but,  as  to  the  apportionment  of  rent,  and  how 
far  it  operates  as  an  extinguishment  of  the  customary  estate,  see  Reay  v. 
Huntington.  (^) 

If  lands  grantable  in  fee  escheat,  the  lord  may  grant  them  out  again  for 
life,  this  being  warrantable  by  the  custom,  for  the  custom  which  enables  him 
to  grant  in  fee  shall  enable  him  to  grant  for  life. (A) 

Upon  the  same  principle,  if  a  copyhold  comes  to  the  lord's  hands  by 
r*fi-i9l  ^s^heat  or  otherwise,  and  the  lord  makes  a  *lease  for  years  or  for 
L  J  life,  or  other  estate  by  deed  or  without  deed,  this  land  can  never 
after  be  re-granted  by  copy?  for  the  custom  is  destroyed,  because  during 
such  estates  the  land  was  not  demisable  by  copy  of  court  roll,(j)  but  see 
further  on  this  point,  post,  §  839. 

{«)  Co.  Cop.,  s.  34,  tr.  74 ;  Ow.  115. 

(f)  Maicii,  G,  pi.  13  ;  Lord  Oxford's  case,  Moor,  0.5  ;  Plimpton  v.  Dobinct,  Gouldsb.  36, 
102  ;  Godb.  110;  3  Leon.  226;  Gilb.  Ten.  322;  1  Watk.  Cop.  40. 

(x)  4  Co.  23  ;  1  Inst.  58.  (v)  Bro.  Tenant  by  Copy.  27  ;  Co.  Cop.,  s.  41. 

(2)  Bro.  Tenant  by  Copy,  27  ;  Co.  Cop.,  s.  41. 

(o)  Gay  V.  Kay,  Cro.  El.  662. 

(ft)  Kitch.  167,  Co.  Cop.  s.  41,  tr.  90  ct  seq. 

(c)  lb, ;  see  also  Smitb  v.  Rciiard,  2  Roll.  Rep.  236. 

{d)  2  Comin.  370;  sec  also  Co.  Cop.  sup. ;  Harris  v.  Jav,  or  Jays,  4  Co.  30 ;  Cro.  EI. 
699  ;  Clarke  v.  Pcnnyfatlier,  4  Co.  33  ;  Paston  v.  Mann,  Hetl.  6. 

(e)Co.  Cop.  s.  51,tr.  91.  (/)  5  Co.  3  b.  (£■)  4  East,  271.  289. 

(/*)  Kempe  and  Carter's  case,  1  Leon.  56.  (i)  French's  case  4  Co.  31  a. 


COMMON    COPYHOLDS.  439 

822.  In  the  next  place,  the  person  making  the  grant  must  have  a  lawful 
interest  in  the  manor  at  the  time  ;  therefore,  if  any  person  having  a  tortious 
or  defeasible  estate  of  inheritance,  subject  to  the  action  or  entry  of  another, 
makes  a  voluntary  grant  upon  escheat  or  forfeiture  of  a  copyhold,  such 
grant  shall  not  bind  him  who  has  right,  when  he  has  recontinued  the  manor 
by  action  or  entry  ;(A')  so,  grants  of  copyholds  by  a  tenant  in  tail  after  dis- 
continuance, and  by  the  feoffee  of  a  man  seised  in  right  of  his  wife,  may, 
after  the  death  of  the  grantor,  be  avoided  by  the  heir  ;(/)  so,  grants  made  by 
the  heir  after  the  death  of  the  ancestor,  whereof  the  widow  is  endowed  ;{7n) 
so,  grants  made  by  an  abator  or  intruder  ;(?i)  so,  by  a  tenant  at  suffer- 
ance,(o)  as  by  a  grantee  pw  autre  vie,  continuing  after  the  death  of  cestui 
que  vie,  or  by  a  lessee  for  years  of  a  manor  after  a  breach  of  condition  an- 
nexed to  his  estate,  and  before  entry  of  lessor ;(/))  sed  secus  upon  grants 
made  by  a  lessee  for  life  on  condition,  after  the  condition  broken,  but  previ- 
ous to  entry  for  breach  of  condition,  as  the  livery  of  seisin  necessary  to  per- 
fect the  grant  could  only  be  avoided  by  entry  or  claim  ;(*/)  so,  grants  by  the 
feoffee  of  an  infant  cannot  be  avoided  by  the  entry  of  the  infant. (r) 

So,  grants  made  after  an  alienation  in  mortmain  will  be  *void,  r-^/^^q-i 
even  before  the  lord  paramount  has  entered  for  a  forfeiture  ;  (5)  so,  L  -J 
by  a  parson,  (a  manor  being  parcel  of  his  glebe,)  made  after  institution,  and 
before  induction,  for  as  to  the  temporahties  he  is  not  complete  parson  before, 
though  it  is  otherwise  as  to  the  spirituahlies,(5) 

823.  It  is  said,  that  if  there  be  two  joint-tenants  of  a  manor,  and  a  copy- 
hold escheats,  one  of  them  may  grant  the  entirety  of  this  copyhold,  each 
being  seised  joe?'  mie  et  per  tout.{t) 

If  the  estate  of  the  grantor  cease  the  next  moment,  it  is  immaterial,  if  he 
be  lord  at  the  time  ;  therefore,  if  a  man  seised  of  a  manor  in  fee  hath  issue 
a  daughter  and  die,  his  wife  privement  enseint  with  a  son,  the  daughter 
may  grant  by  copy,  for  she  was  legitima  doniina  pro  tempore  ;  so,  if  the 
lord  commit  felony,  and  be  attainted  or  convicted  by  verdict  or  confession, 
yet  grants  made  by  him  after  the  felony  committed,  and  exigent  awarded, 
will  be  good,  though  by  relation  the  manor  is  in  such  case  forfeited  from  the 
time  of  the  exigent,  for  in  all  these  cases  he  is  dominus  pro  tempore. (ii) 

824.  A  person  having  an  authority  derived  from  one  who  is  lord  p7'o 
tempore,  or  otherwise,  may  make  grants  of  copyholds  ;  therefore,  if  the  lord 
of  a  manor,  seised  in  fee  simple,  by  his  will  direct  that  his  executors  shall 
grant  copyhold  estates  according  to  the  custom  of  the  manor,  for  the  pay- 

(i)4Co.  21  a;  see  also  1  Kitch.  197;  Co.  Coix  s.  34,  tr.  72;  1  Inst.  58;  Dillon  v. 
Fraine,  Poph.  71. 

(/)  Chudleigli"s  case,  1  Co.  140  b ;  Co.  Cop.,  s.  34,  tr.  73,  74. 

(?rt)  Co.  Cop.  §  34,  tr.  71  ;  1  Inst.  5S,  b.  (n)  1  Inst.  58,  b. 

(0)  Rous  and  Artois'  case,  2  Leon.  45  ;  S.  C,  Ovv.  28;  S.  C.  nom.  Rous  v.  Artois,  Moor, 
236  ;  S.  C,  cited  4  Co.  24  a ;  Co.  Cop.,  §  34,  tr.  74. 

ip)  Co.  Cop.,  §  34,  tr.  74. 

(q)  Earl  of  Arundel's  case,  Dy.  342 ;  S.  C,  Jcnk.  Cant.  242,  Ca.  26 ;  S.  C.  Bendl.  &,  Dal. 
290  ;  S.  C,  recognised  4  Co.  24  a ;  Co.  Cop,,  s.  34,  tr.  70.  74.  75. 

(r)  Co.  Cop.,  s.  34.  (s)  Co.  Cop.,  s.  34. 

(t)  Co.  Cop.,  s.  34,  tr.  76;  but  see  contra,  Lancaster  v.  Lucas,  1  Leon.  234  ;  2  Com.  183  ; 
1  Watk.  on  Cop.  26. 

(u)  Co.  Cop.,  s.  34,  tr.  70,  71  ;  see  also  I  Watk,  on  Cop.  27  et  seq. 


440    •  crabb's   law    of    real  property. 

ment  of  his  debts,   &c„  and  they  make   voluntary    grants    accordingly, 
these  grants  are  good,  although  they  have  no  interest  whatever  in  the 

manor.(a^) 

Grants  made  as  well  by  a  steward  as  by  the  lord  are  good,  and  it  should 
seem,  that  if  he  is  a  steward  de  facto  only,  it  will  be  sufficient,  for  the  law 
-.is  little  inclined  to  examine  either  *the  imperfections  of  the  stew- 
[*'644J  ^^^,^  person  as  being  an  idiot,  &c.,  or  the  unlawfulness  of  his  autho- 
rity ;(y)  yet,  even  a  steward  de  jure  cannot  grant  copyholds  in  opposition 
to  the  express  commands  of  his  principal  ;(z)  neither  would  a  grant  by 
diminishing  the  ancient  rents  and  services  be  good,  for  he  is  in  the  place  of 
the  lord;(«)  and  although  the  lord  afterwards  become  lunatic,  yet  he  may 
by  his  steward  grant  copyholds  ;{b)  but  although  in  that  case  it  was  ordered 
that  the  steward  should  not  grant  without  the  privity  of  the  committee,  yet 
it  would  seem  that  the  steward's  grants  are  sufficient. (6) 

825.  The  queen's  steward  is  appointed  by  letters-patent,  and  such  a 
steward  ex  officio,  without  any  special  warrant,  may  grant  copyholds,  and 
the  queen  shall  be  bound  by  the  custom  of  the  manor  ;(c)  yet  his  duly  is 
before  he  makes  any  grant  to  inform  the  Lord  Treasurer,  or  the  Chancellor, 
or  Barons  of  the  Exchequer  ;(c)  but  a  steward  retained  only  by  the  queen's 
auditor  or  receiver  cannot  make  such  voluntary  grants,  for  neither  the  audi- 
tor nor  receiver  has  authority  to  appoint  stewards  ;(c)  but  if  A.  and  B„ 
under  the  seal  of  the  Exchequer,  be  appointed  joint  stewards  of  all  the  lands 
of  a  fugitive,  and  A.  make  a  court  and  grants  copies,  though  in  strictness 
he  had  no  power  without  B.,  yet  these  grants  are  good,  being  made  by  one 
that  had  a  colour  to  keep  courts. (<Z) 

826.  So,  may  an  undcr-steward  or  deputy  grant  by  copy;(rf)  and  even 
such  deputy  may  appoint  another  to  make  grants  for  him  ;(e)  except  in 
the  case  of  the  queen,  whose  steward  cannot  appoint  a  deputy-,  without  an 

express  authority  for  *lhat  purpose  ;(;^)  but  the  bailifl'of  a  manor 
L*  -1  cannot  make  grants  by  copy,  such  power  being  foreign  to  the  gene- 
ral nature  and  duties  of  his  office. (/i) 

(x)  1  Inst  58,  b.;  Co.  Cop.,  s.  34,  tr.  72,  73. 

(y)  Co.  Cop.,  s.  45,  tr.  194,  105 ;  Gilb.  Ten.  .316. 

(«)  Harris  v.  Jay,  4  Co.  30  ;  S.  C.  nom.  Harris  v.  Jays,  4  Cro.  TX,  699. 

(a)  Harris  v.  Jays,  sup.;  sec  also  Moor,  112  ;  Gilb.  Ten.  222. 

\b)  Blewit's  case.  Ley,  47,  48.  (c)  Harris  v.  Jay,  sup. 

{(l)  Knowles  v.  Luce,  Moor,  109. 

(e)  Parker  v.  Kett,  1  I>i].  Raym.  G58 ;  S.  C,  1  Salk.  95. 

(g)  Harris  v.  Jay,  4  Co.  30.  (A)  Gilb,  Ten,  204. 


C  0  M  M  O  N     C  O  P  V  II  0  L  D  S.  441 


II.  %)o\i3  e'ojpijljoltis  mail  be  Qrautc^. 


§  827.  Where  the  Lord  may  or  may  not  in- 
crease the  Rent  and  Services. 


§  828.  As  to  granting  Copyholds    out  of 
the  Manor. 


§  828.  Entry  of  the  Grants  on  the  Rolls. 


§  827.  If  a  lord  grants  a  copyhold  upon  a  surrender,  he  ought  to  grant  it, 
according  to  the  intent  of  the  surrender,  and  he  cannot  increase  the  rent  and 
services  ;(/)  but  where  a  copyhold  comes  to  the  lord  by  escheat,  forfeiture, 
&c.,  he  may  grant  it  de  novo,  rendering  a  greater  rent,  see  ante,  §  821 ; 
also  for  what  estates  copyholds  may  be  granted,  see  post,  Customary 
Estates. 

828.  It  has  been  much  discussed  whether  the  lord  of  a  manor  can  grant 
copyholds  out  of  the  manor,  or  indeed  out  of  court ;  but  the  better  opinion 
appears  to  be  that  as  these  grants  may  be  made  by  the  lord  or  his  steward, 
they  may  be  made  as  well  out  of  court  as  in  ;{k)  and  the  lord  may  make  a 
grant  out  of  the  manor  at  Avhat  place  he  pleases  ;(^)  but  not  an  under- 
steward  without  express  authority  ;(?n)  but  if  the  court  itself  is  void,  all 
grants  and  admittances,  though  made  by  the  lord  himself,  Avill  be  void 
ioo;{n)  so,  where  one  had  two  manors,  and  granted  a  copyhold  of  the 
one  manor  at  the  court  of  the  other,  held,  that  it  was  a  void  grant,  for 
*it  cannot  be  copyhold  according  to  the  custom  of  the  manor,  where-  p^g^g-i 
of  it  is  not  parcel. (o)  *-         ^ 

So,  to  establish  the  validity  of  all  such  grants,  it  is  necessary  that  an 
entry  thereof  should  be  made  on  the  rolls  of  the  manor,  for  it  is  said,  "  If 
the  lord  in  open  court  doth  grant  a  copyhold  land,  and  the  steward  maketh 
no  entry  thereof  in  the  court-rolls,  this  is  not  good,  though  it  be  never  so 
publicly  done,  nor  no  collateral  proof  can  make  it  good."(jt3) 


III.  So  b)l)om  (JGi-nnts  of  ©opnljolTJs  majj  be  matje. 


<j  829.  Grants  may  be  made  to  Persons  gene- 
rally. 
Exception  as  to  Lord. 
830.  A  Feme  covert  may  be  a  Grantee, 
when. 


§  83L  The  Queen  cannot  be  a  Grantee. 

Whether  a  Corporation  may  be  a 
Grantee. 
832.  Whether  an  Alien  may. 


§  829.  As  a  rule,  all  persons  capable  of  taking  grants  at  common  law 
may  take  also  by  copy,  and  vice  versa  ;{(][)  but  to  this  rule  there  are  some 

(»•)  2  Roll.  Abr.  236.  W  1  Inst.  61,  b. 

(Z)  Melwich's  case,  4  Co.  26  b. 

Im)  Co.  Cop.  s.  46 ;  see  also  Gilb.  Ten.  by  Watkins,  n.  (n) ;  1  Watk.  Cop.  39. 
(n)  CliRon  v.  Molineux,  4  Co.  27. 

(o)  Duke  of  Suffolk's  case,  cited   in  Sands  v.  Drury,  Cro.  El.  814  ;  see  also  Marke  V. 
Sulyard,  Toth.  107  ;  and  see  further  1  Scriv.  Cop.  126,  3d  ed. 
(p)  Calth.  Read.  37.  (5)  Co.  Cop.,  s.  35,  tr.  79 ;  Calth.  Read.  51  et  seq. 


442  crabb's  law  of   real  property. 

exceptions  arising  partly  from  the  nature  of  the  copyhold  tenure  ;  thus,  the 
lord  cannot  grant  a  copyhold  to  the  use  of  himself,  for  nemo  potest  esse 
tenens  et  dominus  ;(r)  and  when,  says  Lord  Coke,  the  lord  may  take  a 
copyhold  to  his  own  use,  that  must  be  understood  to  mean  that  he  may  take 
a  surrender  to  his  use.(s) 

830.  A  feme  covert  may  he  the  purchaser  of  a  copyhold,  and  the  pur- 
chase shall  stand  in  force  until  her  husband  disagrees  ;{t)  but  a/eme  covert 
cannot  be  a  grantee  of  a  copyhold  immediately  from  her  husband. («) 

*831.  The  queen  cannot  be  a  copyholder  either  in  her  corporate 
[*647]  ^^  natural  capacity ;  therefore,  if  a  person  who  holds  a  copyhold 
estate  becomes  a  king,  the  copyhold  is  suspended,  for  it  would  be  beneath 
the  dignity  of  a  king  to  perform  services. (a?) 

It  is  generally  supposed  by  text  writers  that  a  corporation  either  aggre- 
gate or  sole  cannot  hold  by  copy  of  court-roll,  for  the  effect  would  be  to  de- 
prive the  lord  as  well  of  suit  and  service  as  of  his  fine  ;(?/)  but  my  Lord 
Coke  is  the  other  way  ;{z)  and  in  Ranshaw  v.  Robotham,(«)  it  was  held, 
that,  supposing  a  surrender  to  be  made  to  A.  to  the  use  of  a  charity,  it  is 
clear  that  the  lord  would  be  compellable  to  admit  A.,  because  he  would  re- 
ceive no  prejudice  thereby,  as  he  would  have  his  tenant  in  A. 

832.  Whether  an  alien  may  be  a  copyholder  is  not  so  settled.  It  has 
been  said  that  a  bond-man  and  an  alien  born  may  be  a  copyholder,  and  nei- 
ther the  queen  nor  the  lord  can  seize  the  same  ;{b)  but  the  belter  opinion 
seems  to  be  that  an  alien  could  not  compel  the  lord  to  admit  him,(c)  and  that 
the  lord,  not  the  queen,  should  have  the  advantage  of  any  purchase  of  copy- 
holds made  by  an  alien,((/)in  which  case  it  was  held,  that  copyholders 
being  idiots  were  not  within  the  Survey  of  the  Court  of  Wards,  but  of  the 
manor  courts  only  ;  and  in  R.  v.  Holland(c)  it  is  said  to  have  been  adjudged 
that,  if  an  alien  purchase  copyhold  lands,  the  king  shall  not  have  the  estate 
but  as  a  trust,  and  the  particular  reason  was,  because  the  king  shall  not  be 
tenant  to  the  lord  of  the  manor.(/) 

(r)  Calth.  Read,  53. 

($)  Co.  Cop.,  s.  35;  see  also  1  Watk.  Cop.  30. 
It)  Co.  Cop.,s.  35,  tr.  79  ;  Sliepp.  Ct.  Keep.  115. 

(«)  Symcsv.  Pennant,  2  Wils.  254.  .      ,    .      t^   i         f 

(x)  Field  V.  Bootlisby,  2  Sid.  82  ;  sec  R.  v.  Holland,  Sty.  41  ;  recognized  in   Duke  of 
York  V.  Marsluim,  Hard.  434. 

(y)  See  1  Ca.  and  Opin.  186 ;  1  Watk.  on  Cop.  242,  n. 

(z)  Co.  Cop.,  s.  49,  tr.  113,  114. 

(a)  Duke  Char.  Us.  by  Bridgman,  135.  (t)  Calth.  Read.  52. 

Ir.)  Harrison,  Lect.  Line.  Inn,  1632,  cited  1  Scriv.  133,  n.  (c) ;  1  Watk.  Cop.  31. 

id)  Dy.  302.  (0  Sty-  41. 

(/)  Smith  V.  Wheeler,  1  Mod.  17,  citing  R.  v.  Holland,  sup. 


COMMON    COPYHOLDS.  443 


*IV.  TO5)?tt  EUnZs  jjrantable  Ijj)  ©cpw  of  ®ourt-l^oU.  [*648] 


§  333.  What  Things  generally  are  grant- 
able. 
Land,  or  Things  that  concern  Land. 
834.  Tilings  Parcel  of  the  Manor,  and  of 
Perpetuity. 


836.  Whether  Tithes  are  grantable 


§  834.  Underwood,  Trees,  &c. 

TJie  Fore  Crop  or  Prima  Tonsura. 
835.  Incorporeal  Tilings  not  grantable. 
Unless  Appendant. 
Wlien  in  gross  not  grantable. 


§  833.  CTcnerally,  all  lands  and  tenements  situated  within,  and  being  par- 
cel of  a  manor,  are  grantable  by  copy,(g-)  and  so  even  a  manor  itself  may  be 
demisable  by  copy  ;(A)  and  the  lord  of  the  custoinary  manor  may  hold  cus- 
tomary courts,  but  not  a  court-baron, (i) 

So,  anything  that  concerns  lands  or  tenements  may  be  granted,  therefore, 
it  has  been  adjudged  that  a  mill  may  be  granted  by  copy.(A:) 

834.  Again,  what  things  soever  are  parcel  of  the  manor  and  are  of  per- 
petuity may  be  granted  by  copy,  otherwise  it  can  never  be  shewn  that  there 
has  been  a  custom  to  demise  them  by  copy ;(/)  therefore,  underwood,  even 
without  the  soil,  may  be  demised  by  copy,  because  it  is  a  thing  of  per- 
petuity, to  which  the  custom  may  extend, (m)  and  for  the  same  reason  a 
grant  by  copy  of  twenty  loads  of  wood  to  be  taken  by  the  grantee  is  good, 
for  it  is  not  necessary  that  the  thing  have  continuance,  but  onlj;^  that  it  be  a 
thing  of  *perpetuity,  which  trees  are;  for  a  man  may  have  an  in-  r-^f,.Q-, 
herilance  in  trees,  and  trees  whilst  growing  are  a  tenement,  and  a.  ^  -' 
tenure  may  be  reserved  upon  a  grant  of  them  ;(n)  so,  also,  the  herbage  or 
vesture  of  land,  the  fore  crop,  or  prima  tonsura  may  also  be  grantable  by 
copy,(o)  and  the  freehold  interest  in  the  soil  may  be  in  one  man,  and  the 
copyhold  interests  of  the  prima  tonsura  may  be  in  another  ;{p)  but  the 
grant  by  copy  of  wastes,  which  have  not  usually  been  so  granted,  will  not 
be  good,  because,  in  order  to  support  a  grant  by  copy,  it  is  essential  that  the 
thing  granted  has  been  demised  and  demisable  from  time  immemorial. (^) 

835.  Things  which  do  not  lie  in  tenure  are  not  grantable  by  copy,  and 
therefore  things  incorporeal,  for  which  there  can  be  no  distress,  and  which 
are  not  parcel  of  the  manor  (this  consisting  only  in  demesnes  and  services) 
cannot  be  demisable  by  copy,  for  no  service  can  be  reserved  or  due  upon 
the  grant  of  incorporeal  things  ;  and   as  no  attendance  is   due  from  the 

(g)  1  Inst.  58,  b. 

(/O  R  V.  Stanton,  Cro.  Jac.  259 ;  S.  C.  nom.  R.  v.  Staverton,  Yelv.  190. 

(i)  Moore  v.  Woodgame,  Cro.  Jac.  327 ;  S.  C.  nom.  Nevil's  case,  11  Co.  17  a ;  sec  also 
Jenk.  Cent.  274,  pi.  95  ;  Scroggs,  94  ;   1  Watk.  Cop.  32  et  seq. ;  1  Scriv.  Cop.  126,  3d  cd. 

(^■)  Ward's  case,  4  Leon.  241,  citing  and  recognizing  Green  and  Harris,  where  the  same 
was  adjudged. 

(/)  C;o.  Cop.,  s.  42,  tr.  97  ;  Gilb.  Ten.  332. 

(m)  Hoe  and  Taylor,  4  Co.  30  b,  31  a;  S.  C,  1  Cro.  El.  413;  S.  C,  Moor,  315,  ad. 
judged  and  affirmed  upon  a  writ  of  error. 

(n)  Co.  Cop.  s.  42,  tr.  98 ;  Gilb.  Ten.  332. 

(o)  Hoe  V.  Taylor,  4  Co.  30  b,  31  a  ;  Sands  and  Drury,  Cro.  El.  814, 

ip)  Stammers  v.  Dixon,  7  East,  200. 

iq)  Newman  v.  Newman,  2  Wils.  125 ;  1  Watk.  Cop.  34,  and  cases  there  cited. 


444  crabb's  law  of   real  property. 

grantee,  no  court  is  necessary  to  be  kept  for  surrenders,  admittance,  &c.{r) 
But  a  distinction  has  been  taken  between  things  appendant  and  things  in 
gross,  for  things  incorporeal,  which  are  appendant  to  those  that  lie  in  tenure, 
may  be  granted,  as  a  common  appendant  to  land  which  is  parcel  of  a  manor, 
may  be  granted  by  copy  without  the  land.  ;[s\  and  so  common  of  pasture 
and  other  commons  are  grantable  by  themselves  without  the  land;(^)  so,  a 
rent-charge  and  rent-seek  may  be  parcel  of  a  manor,  and,  consequently,  de- 
misable ;(x)  and  also  rent-service  ;(_y)  so,  an  advowson,  fair,  market,  piscary, 
*flf^nn  being  appendant  to  a  manor,  *may,  for  the  same  reason,  be  granted 
L  by  copy.(z)     On  the  other  hand,  advowsons,  rents,  commons,  and 

the  like,  when  in  gross,  and  consequentl}',  not  parcel  of  the  manor,  cannot 
be  held  by  any  sort  of  service,  and  therefore  are  not  grantable  by  copy. (a) 

836.  It  has  been  much  doubted  whether  tithes  were  demisable.  In  Sir 
John  Bourne's  case(6)  and  in  Hoe  v.  Taylor,(c)  it  was  adjudged  that  tithes 
were  demisable  ;  but  in  Sands  v.  Drury(</)  this  was  denied  to  be  law,  and 
it  was  there  held,  that  tithes  cannot  pass  unless  by  deed,  and,  therefore,  to 
grant  them  by  copy  of  court  roll  cannot  be  good,  and  it  was  also  said,  it  had 
been  adjudged  that  tithes  cannot  be  parcel  of  a  manor ;  but  in  Musgrave  v. 
Cave(e)  this  last  decision  was  overruled,  and  it  was  held  that  tithes,  like 
other  incorporeal  hereditaments,  may  be  parcel  of  a  manor,  and,  consequently, 
demisable  by  copy,  if  the  custom  will  warrant  it. 


V.  ©onstructfon  of  krauts. 


1^  837.  General  Construction  of  Grants. 

Subject    to    the    Custom    of    the 
Manor, 


§  838.  Construction  of  particular  Words  or 
Forms  of  Grants. 
The  Word  "  successive." 


838.  What  Parties  may  talic. 


§  837.  As  a  rule  grants  of  copyholds  receives  the  same  construction  as 
grants  of  freehold  land  do  at  common  law,  therefore  a  grant  to  one  and  his 
heirs  gives  a  fee  simple  ;(/)  so,  grant  of  a  copyhold  to  A.  and  his  heirs, 
upon  condition  that  he  pay  100/.,  and  if  he  fail,  then  to  B.  and  his  heirs,  has 
r*fi^n  ^^^^  ^^^^  ^°  b^  good,  the  Court  considering  it  not  so  much  a  *fec 
L  -^  dependent  upon  a  fee,  as  a  use  limited  upon  a  feoffment  ;{g)  but 
such  grants  will  be  construed,  for  the  most  part,  as  they  are  in  pursuance 
of  the  custom  or  otherwise,  therefore,  if  copyhold  lands  have  been  usually 
granted  in  fee,  a  grant  to  one  and  the  heirs  of_his  body,  or  to  one  for  life 

(»•)  Co.  Cop,,  s.  42,  tr.  97 ;  Calth.  Read,  41 ;  Gilb.  Ten.  332. 

(s)  Sands  V.  Drury,  Cro.  El.  814.  (t)  Musgrave  v.  Cave,  Willes,  319. 

(x)  2  Roll.  Abr.  120,  pi.  2,  3, 

(y)  Id.,  pi.  4,  citing  22  Ass.  53 ;  31  Ass.  23 ;  see  also  Musgrave  v.  Cave,  Willcs,  325. 

(2)  lb.;  and  sec  Hoe  v.  Taylor,  4  Co.  30  b,  31  a  ;  Sands  v.  Drury,  Cro,  El.  81 1. 

(a)  Co.  Cop.,  s.  42,  tr.  97  ;  Calth.  Read,  41 ;  Gilb.  Ton.  331. 

(/<)  Cited  1  Roll.  Abr.  498  a,  pi.  1.  (c)  1  Cro.  El.  413.  (</)  Sup. 

(e)  Willcs,  324.  (/)  Litt.,  sect.  73. 

ig)  Paulter  v.  Cornbill,  1  Cro.  El.  361. 


COMMON    COPYHOLDS.  445 

or  years,  is  within  the  custom,  for  the  lord  having  an  authority  by  custom, 
and  also  an  interest,  the  custom  which  enables  him  to  grant  a  greater  estate 
will  enable  him  to  grant  a  less,  quia  omne  mojus  continet  in  se  minus  ;(//) 
so,  after  the  death  of  tenant  for  life,  the  lord  may  grant  the  same  again  in 
fee,  for  the  grant  for  life  was  not  any  interruption  of  the  custom. (i)  So, 
where  grants  have  been  made  for  life,  a  grant  durante  viduitate  is  good, 
for  that  is  a  less  estate  than  during  her  life  ;(/t)  so,  if  there  be  a  custom  that 
copyholds  may  be  granted  for  three  lives,  a  copyhold  mny  be  granted  to 
three  for  the  lives  of  two  within  the  custom,  for  there  is  no  inconvenience 
to  the  lord,  though  it  be  for  the  life  of  another,  for  there  shall  not  be  any 
occupancy,  but  the  lord  shall  have  it,  if  the  tenant  pur  autre  vie  die  living 
cestui  que  vies,  and  this  is  not  a  greater  estate  than  for  three  lives,  which  is 
what  the  custom  warrants  ;(/)  so,  if  the  lord  grant  by  copj^  to  hold  for  the 
lives  of  two,  and  the  longest  liver  of  them  successively,  it  will  not  give  any 
estate  to  the  cestui  que  vies,{m\  unless  there  be  a  special  custom  in  favour 
of  such  construction,  as  in  the  case  of  Nepean  v.  CToddard,(/i)  where  there 
was  a  custom  which  gave  the  copyholds  to  the  cestui  que  vies,  in  the  event 
of  the  grantee  dying  without  having  disposed  of  the  estate  by  will,  and  there- 
fore extending  the  principle  of  general  occupancy  to  copyholds  was  held  to 
be  good. 

*838.  The  words  sibi  ct  suis,  or  sibi  et  assignatis,  and  such  like,  p*^Ko-i 
may,  by  custom,  create  an  estate  of  inheritance  ;(o)  and  so,  by  cus-  L  J 
tom,  the  words  "him"  and  "his"  may  create  an  estate  for  hfe  only  ;(p)  so, 
a  grant  by  the  lord  to  the  father  and.  son,  there  being  but  one  son,  is  good, 
but  if  more  than  one  son,  it  is  void  for  uncertainty. (5-) 

If  a  cop3diold.  be  granted  to  three  habendam  successive,  they  are  joint- 
tenants,  unless  by  special  custom  the  word  successive  makes  the  estate 
several  ;(r)  so,  if  the  custom  of  the  manor  be,  that  the  lands  are  demisable 
by  copy  to  two  or  three  for  their  lives,  and  the  life  of  the  survivor,  liahenduni 
successive  sicut  nominantur  in  charta  et  non  aliter,  paying  a  heriot  on  the 
death  of  every  one  dying  seised,  a  grant  to  A.  and.  his  assigns,  for  the  lives 
of  B.  and  C,  and  of  the  said  A.,  is  good  within  the  custom  ;(s)  but  if  by  the 
custom  of  the  manor  a  copyhold  may  be  granted  for  three  lives,  and  it  is 
granted  to  one  for  his  hfe  with  remainder  to  such  woman  as  he  should 
marry,  remainder  to  the  first  son  of  his  body,  such  remainder  shall  be  void 
and  the  estate  for  life  only  is  good.(^) 

In  the  grants  of  copyholds  the  party  named  in  the  habendum  only  may 
take,  for  in  many  manors  it  is  customary  to  insert  the  words  of  grant  and 

{h)  1  Inst.  52 ;  see  also  Godb.  20 ;  Stanton  v.  Barnes,  1  Cro.  El.  373 ;  Kempe  ancj 
Carter's  case,  1  licon.  56. 

(i)  Kempe  and  Carter's  case,  sup. 

(A:)  Down  v.  Hopkins,  4  Co.  20  b,  30  a ;  S.  C,  1  Cr.  El.  323. 

(Z)  1  Roll.  Abr.  511.  (»«)  Wells  (Dean,  &c.)  v.  Bawden,  3  East,  260. 

(n)  1  B.  &,  C.  522  ;»  S.  C,  2  D.  &  R.  773. 

(0)  Bunting  v.  Lepingwel,  4  Co.  29  b. 

(p)  Hide  V.  Welsh,  Sel.  Chan.  Ca.  165  ;  see  1  Watk.  Cop.  109,  n.;  1  Scriv.  Cop,  122. 

(7)  Cob  V.  Betterson,  Cro.  Jac.  374.  (r)  2  Co.  Cop.,  s.  142. 

(s)  Smartle  v.  Penhallow,  1  Salk.  188;  S.  C,  1  Ld.  Raym.  434;  S.  C,  6  Mod.  63, 

(0  Moor,  677,  pi.  922. 

»Eng.  Com.  Law  Reps.  viii.  148. 
December,  1846. — 29 


446  crabb's   law    of    real    property. 

limitation  in  the  habendum  only,  and  there  are  forms  of  such  grants  that 
have  been  held  good.(t<) 


r»653]    *VI.  ?^o^jj  tlje  ^otoer  of  aranliiis  Coj)bI)o1^s  tnag  I)e  lost  or  susptitUctr. 

§  839.  Power  of  granting  Copyholds  lost  by  '  §  842.  Power  ofRe-grant. 
Change  of  the  Estate.  j  Cy  AHenee. 

Wheg  suspended.  By  Copyholder. 

840.  Lords  having  particular  Estates.  Ly  Lessee. 

841.  In  the  case  of  the  Crown.  '      843.  EfFect  of  Re-grant. 

844.  Re-grant  of  Copyliolds  under  the  Statute. 


§  839.  Although  lords  of  manors  having  copyholds  coming  to  them  by 
escheat,  forfeiture,  &c.  may  re-grant  them  according  to  the  custom  of  the 
manor,  yet  this  power  may  be  lost  in  different  ways,  as  by  changing  the 
nature  of  the  estate  and  creating  a  common-law  interest,  therefore,  if  the  lord 
makes  a  lease  for  years  or  for  hfe,  or  other  estate  by  deed  or  without  deed, 
the  copyhold  is  destroyed  ;(x)  so,  if  the  lord  makes  a  feoffment  in  fee  upon 
condition,  and  afterwards  enter  for  the  condition  broken,  yet  it  cannot  be 
granted  again  by  copy  ',[x\  or,  if  the  land  so  forfeited  or  escheated,  before 
any  new  grant  made,  be  extended  upon  a  statute  or  recognizance  ',{x^  so, 
if  the  wife  of  the  lord,  in  a  writ  of  dower  have  it  assigned  to  her.(ar) 

But  a  distinction  has  been  taken  between  interruptions  which  are  by  act 
of  law,  and  such  as  are  by  tortious  acts,  for  in  the  former  case,  as  in  the 
instances  above  given,  the  interruptions  being  all  by  laAvful  acts,  the  demisa- 
ble quality  of  the  land  is  destroyed  :  but  in  the  latter  case,  where  the  act  is 
unlawful,  and  therefore  void,  the  demisable  property  is  not  destroyed,  only 
suspended  ;  therefore,  if  the  lord  be  disseised,  and  the  disseisor  die  seised, 
or  if  the  land  be  recovered  by  the  lord  by  a  false  verdict  or  erroneous  judg- 
ment, though  it  be  not  demisable  by  copy  until  it  be  recovered  by  the  right- 
ful lord,  yet,  after  it  is  come  again  into  his  possession  it  is  granlable  again  by 
copy.(x) 

P^  -,  *840.  Again,  the  power  is  totally  lost  only  when  the  lease  or 
L  -^  grant  is  so  made  by  a  lord  who  is  seized  in  fee,  for  if  the  lord  has 
only  a  particular  interest  in  the  manor,  as  being  a  tenant  in  tail  or  for  life,  or 
husband  seised  in  right  of  his  wife,  and  the  like,  he  shall  not,  by  making 
such  a  lease  or  grant,  prejudice  the  estate  of  him  who  is  entitled  in  remain- 
der or  reversion  ;  and  therefore,  though  he  himself  shall  be  bound  by  his 
own  act,  and  precluded  from  granting  the  lands  again  by  copy  during  his 
own  time,  yet,  upon  the  determination  of  his  estate,  the  land  will  resume  its 
demisable  quality,  for  the  custom  cannot  be  affected  to  any  greater  extent  than 
the  estate  which  the  person  committing  the  act  had  in  the  land;(j/)  so,  a  feoff- 

(m)  Brooks  V.  Brooks,  Cro.  Jac.  434.  citinjr  4  Ed.  3,  pi.  11 ;  see  also  S.  C,  Poph.  125  ; 
Cosh  V.  Loveless,  2  B.  &.  A.  454 ;  Gilb.  Ten.  255. 

(x)  French's  case,  4  Co.  31  a. 

(y)  French's  case,  4  Co.  31  a. ;  Connesbie  v.  Rusky,  2  Cro.  El.  459  ;  S.C.,  nom.  Rusley 
and  Conesby,  2  Roll.  Abr.  271 ;  Prior  of  Bath's  case,  4  Leon,  199. 


V 

•I 


I 

it 


COMMON     COPYHOLDS.  447 

ment  in  fee  upon  condition  is  said  not  to  destroy  the  power,  although  the 
lord  afterwards  enter  for  the  condition  broken  ;{z)  so  in  Lee  v.  Boothby,(a) 
it  was  held,  that  if  the  lord  leased  the  manor,  and  also  a  copyhold,  by  name, 
it  was  no  extinguishment  of  the  copyhold,  and  the  naming  the  copyhold  was 
surplusage  ;  but  if  he  leased  a  copyhold  by  itself,  it  was  gone  as  a  copyhold 
forever;  it  was  also  said  there,  that  if  a  lord,  though  but  dominus pro  tem- 
pore, made  a  lease  for  years  of  a  copyhold  by  itself,  it  would  destroy  the 
copyhold  ;  but  this  is  at  variance  with  French's  case,  &c.,(i)  also  with 
Winter  v.  Loveday,(c)  where  it  was  held,  that  if  a  lessee  of  a  manor  makes 
leases  of  the  copyholds,  it  will  not  be  an  extinguishment  of  them,  yet  if  a 
lessee  by  virtue  of  a  power  demises,  that  is  an  absolute  destruction  of  them, 
because  the  power  is  derived  out  of  the  fee,  and  it  is  all  one  as  though  tenant 
in  fee  simple  made  a  lease. ((/) 

*841.  In  Cromer  v.  Burnett,(e)  it  was  held,  that  if  the  king  r^n,r,fi-\ 
leased  an  escheated  copyhold  by  deed,  the  custom  shall  not  be  L  J 
destroyed ;  but,  on  the  expiration  of  the  lease,  he  might  again  grant  it  by 
copy,  for  the  grant  of  the  king  shall  not  enure  to  a  double  intent  as  that  of 
a  subject  may ;  see  also  1  Inst.  58,  b.,  and  n.  (7)  ;  Prior  of  Bath's  case  ;(^) 
but  see  contra,  Lee  v.  Booihby.(/t) 

842.  But  if  lands  come  into  the  hands  of  the  lord  by  escheat,  forfeiture, 
or  otherwise,  he  may  keep  the  lands  in  his  own  hands,  or  he  may  re-grant 
them  at  pleasure  ;(i)  and  if  the  lord  alien  the  manor,  his  alienee  may 
re-grant  the  land  by  copy  ;[k)  so,  if  a  copyholder  accede  to  the  manor  by 
taking  a  lease  thereof  for  years  and  the  like,  by  which  his  copyhold  is 
extinct,  yet  he  may  re-grant  it  just  as  the  original  lord  might  have  done  on 
an  escheat,  and  it  matters  not  whether  the  manor  come  to  the  copyholder  or 
the  copyhold  to  the  lord,  for  it  was  always  demised  or  demisable. (7) 

843.  As  on  the  grant  of  a  copyhold,  the  tenant  is  in  immediately,  not  by 
the  lord,  (who  acts  only  as  an  instrument,)  but  by  the  custom,  which  being 
prior  to  and  paramount  the  interest  of  the  granting  lord,  it  follows,  that  on  a 
re-grant  of  the  copyhold,  the  grantee  cannot  be  affected  by  any  acts  done  by 
the  lord  whilst  the  lands  remained  in  his  hands,  which  in  the  case  of  free- 
hold lands,  might  operate  as  a  charge  or  incumbrance  on  the  land  ;  therefore 
if,  after  the  escheat  of  a  copyhold,  the  lord  grant  a  rent-charge  or  acknow- 
ledge a  statute,  and  then  re-grant  the  land  to  be  holden  by  copy,  such  rent- 
charge  or  statute  will  be  no  charge  upon  the  copyhold  •,{pi\  and,  in  like  case, 

(z)  Co.  Cop.,  s.  63,  tr.  141.  (a)  W.  Jo.  449.  {h)  Sup. 

(c)  1  Freem.  507  ;  S.  C,  1  Com.  40  ;  S.  C,  Carth.  427  ;  S.  C,  1  Ld.  Ravm.  267  ;  S. 
C,  5  Mod.  244  ;  12  Mod.  147,  (butas  to  12  Mod.  see  1  Dougl.  83;)  S.  C,  2SaIk.  537. 

{d)  1  Freem.  508,  ct  supra.  (e)  Str.  266. 

{g)  4  Leon.  199.  Qi)  W.  Jo.  449, 

(i)  Co.  Cop.,  s.  62,  tr.  141 ;  French's  case,  4  Co.  31  b ;  Taverncr  and  Cromwell,  3  Leon. 
108  ;  Blemmerliasset  v.  Humberstone,  Hult.  65 ;  S,  C.  nom.  Blenerhasset  v.  Homberstoue, 
W.  Jo.  48  ;  Gibbons  v.  Pott,  2  Dougl.  720. 

(i-)  French's  case,  sup.  (Z)  4  Co.  31  b. 

(m)  Swayne's  case,  8  Co.  63  b ;  S.  C,  Moor,  811  ;  4  Co.  24  a  ;  Co,  Cop.,  s.  34,  tr.  71 ; 
Podger's  case,  9  Co.  107  ;  Cliara  and  Dover's  case,  1  Leon.  16. 


448 


CRABBS  LAW  OF  REAL  PROPERTY. 


*it  has  been  decided,  that  the  grantee  will  hold  discharged  of  the 
L  J  dower  of  the  wife  of  the  lord,(n)  but  see  contra  as  to  a  rent,  Wal- 
ton's case,(o)  Sands  v.  Hempston,  &c.  ;(/))  and  in  Sammer  and  Force((j')  it 
is  said,  if  a  copyholder  be  of  twenty  acres,  and  the  lord  grants  rent  out  of 
those  twenty  acres  in  the  tenure  and  occupation  of  the  said  copyholder,  (and 
names  him,)  then  if  this  copyhold  escheat  and  be  granted  again,  the  copy- 
holder shall  hold  it  charged,  for  this  is  now  charged  by  express  words. 

Upon  the  same  principle,  if  the  lord  grant  the  freehold  of  the  lands  of  his 
copyholder  to  a  stranger,(?')  or  lease  them  for  years  to  a  stranger,(s)  this  will 
extinguish  or  determine  the  copyhold  estate,  for  custom  has  so  established 
the  copyholder's  estate,  he  is  not  removable  at  the  lord's  will  so  long  as  he 
performs  his  customs  and  services. (^) 

844.  By  the  35  H.  8,  c.  13,  it  is  provided,  that  the  king's  manors  of 
Granges,  &c.  in  the  county  of  Norfolk,  formerly  part  of  the  possessions  of 
the  abbey  or  priory  of  Walsingham,  might  be  granted  by  copy  of  court 
roll,  in  fee  simple,  or  term  of  life  or  lives,  by  the  stewards  of  the  said 
manors,  for  such  rents,  services,  fines,  heriots,  and  customs  as  in  the  said 
copies  should  be  good  against  the  king,  his  heirs,  successors,  and  assigns ; 
and  by  the  37  H.  8,  c.  2,  it  is  provided,  that  so  much  of  Hounslow  Heath 
as  was  the  king's  inheritance,  and  was  meet  for  tillage,  pasture,  meadow,  or 
other  several  ground,  should  be  of  the  nature  of  copyhold  land,  or  the  same 
might  be  letten  by  the  steward  of  the  manor  at  will,  or  for  twenty-one  years, 
which  lessee,  &c.  might  improve  it. 


[  *657  ]  *iv.  jfti'sUts  auXr  K-uterests  of  aorij  auti  ^Tenant. 


§  84.5. 
846. 


847. 

848. 

849. 


850. 

851. 
852. 
853. 
854. 


Manorial  Rights. 

Estate  of  the   Lord  in  the   Lands 

granted  to  the  Tenants. 
The  Freehold  is  in  the  Lord. 
Customary  Estates. 
Tenant's  Interest  in  the  Rolls  of  the 

Court. 
Possessory  Right  is  in  the  Tenant. 
Tenant's   Interest    in    the    Under- 
woods, &c. 
Extent  of  the  Right. 
Tenant's  Interest  in  the  Shade,  &c. 

of  the  Trees. 
Tenant  has  no  Right  to  sell  Wood, 

when. 
Lord's    Right  to   the    Trees  when 

severed  from  the  Soil. 
Tenant's    possessory    Right  in   the 

Mines. 
Tenant's  Remedy  against  the  Lord 

in  case  of  liis  entering  on   the 

Land. 
Bourne  v.  Taylor. 


§  854. 
855. 


85G. 


857. 
858. 


Grey  v.  Northumberland  (Duke). 

Extent  of  Tenant's  possessory  Right 
to  the  Surface  and  what  is  under- 
neath. 

Lord's  Right  to  the  Minerals  when 
severed. 

How  the  Lord  may  lose  his  Right 
to  the  Minerals. 

Prima  facie  Right  of  the  Lord  to  the 
Wastes  and  Commons. 
How  restricted. 

859.  Extent  of  the  Right. 

860.  Copyholders    may    claim    Right  of 

Common  by  Custom  only. 

When  the  Custom  is  good,  or  other- 
wise. 

Right  of  Lord  to  appoint  a  Guar- 
dian, &c. 

Lord's  Power  over  the  Lands  of 
Lunatics. 

Where  Lands  are  purchased  by 
Aliens. 


861. 


862. 


(7i)  Sands  and  Hempston,  2  Leon.  109;  S.  C.  nom.  Executors  of  Sir  Wm.  Cordal,  Id. 
252 ;  S.  C.  nom.  Earl  of  Westmorland's  case,  3  Leon.  59  ;  Snc3'd  v.  Sncyd,  1  Atk.  442. 
(o)  3  Dy.l70  b.  (p)  2  Leon.  109.  (5)  2  Brownl.  208. 

(r)  Murrel  v.  Smith,  4  Co.  24  b. 

(s)  Lane's  case,  2  Co.  16  ;  Beale  and  Langley,  2  Leon.  209  ;  4  Leon.  230. 
(<)  Lane's  case,  sup. 


COMMON    COPYHOLDS.  449 

§  845.  The  rights  of  the  lord  are  properly  denominated  manorial,  as  they 
are  enjoyed  in  respect  of  that  privileged  district  of  land  in  his  possession, 
known  by  the  name  of  a  manor,  see  ante,  §§  88  et  seq.,  and  are  either  incident 
to  the  manor,  or  are  usually,  though  not  necessarily  and  exclusively,  annex- 
ed to  the  same.  Of  the  first  description  are  the  fruits  or  appendages  of 
tenure,  as  fealty,  services,  fines,  &c.,  see  ante,  §§  770  et  seq. ;  right  to  have 
a  court-baron  as  incident  to  a  manor,  see  ante,  §  631  ;  and  a  power  to  grant 
lands  by  copy  of  court-roll,  see  ante,  §§  819  et  seq.  Those  of  the  second  des- 
cription are  the  franchises  already  treated  of,  see  ante,  §§  623  et  seq.,  which, 
though  usually  annexed  to  manors,  do  not  necessarily  and  exclusively  belong 
to  or  go  with  them. 

*846.  As  to  the  estate  which  the  lord  has  in  those  portions  of  the  pjiff.-Q-i 
manor  which  have  been  granted  to  his  tenants,  this  is  very  different.  L  -• 
A  tenant  by  copy  of  court-roll  is  still  described  as  a' tenant  at  will,  although 
he  may  possess  an  estate  in  fee  simple,  in  fee  tail,  for  hfe,  by  the  curtesy, 
and  other  estates  similar  to  those  which  may  be  had  in  freehold  lands  at 
common  law  ;  and  the  freehold,  on  the  other  hand,  is  considered  to  reside  in 
the  lord  only,  and  to  many  intents  it  continues  so  to  do,  particularly  as  re- 
gards the  lord's  right  of  escheat  and  forfeiture,  but  the  tenant  does  not  hold 
at  the  arbitrary  will  of  the  lord,  for  he  holds  also  according  to  the  custom  of 
the  manor,  and  a  tenant  is  not  removable  at  the  lord's  will,  so  long  as  he  per- 
forms his  customs  and  services. (t<) 

847.  Custom  directs  every  thing  relating  to  the  estates  of  the  copyholder, 
as  it  does  in  respect  to  copyholds  generally ;  and  as  customs  vary  not  only 
from  the  common  law  but  also  from  each  other  in  different  manors,  the 
incidents  of  copyhold  estates  differ  from  similar  estates  at  common  law  in 
many  particulars,  which  will  be  treated  of  under  the  head  of  Customary 
Estates,  see  post ;  and  as  to  the  modes  of  transferring  such  interests  under 
title  by  customary  alienation,  see  post.  Title  to  Things  Real. 

848.  Tenant  by  copy  of  court-roll  has  an  interest  in  the  rolls  of  the  court 
as  well  as  the  lord,  and  the  lord  cannot  deny  copyholders  access  to  them  •,(x) 
and  the  steward  has  been  ordered,  on  several  occasions,  to  produce  the 
rolls,  (y) 

But  besides  the  rights  and  interests  already  mentioned,  there  are  three 
things  in  which  the  lord  and  tenant  have  an  interest  in  common,  though  in 
different  degrees,  namely,  in  trees,  mines,  and  commons,  which  demand 
here  a  particular  Consideration,  although  treated  of  in  other  parts,  ^^.p-q-i 
see  post,  under  Customary  Estates.  L         -J 

1.  Bights  in  Trees. 

849.  A  copyholder  has  the  same  customary  or  possessory  interest  in  the 
trees  as  he  has  in  the  land, (2-)  for  custom  has  fixed  it  to  his  estate  against 

(w)  Lane's  case,  2  Co.  16.  (z)  Widow  Stacy's  case,  Latch,  182. 

(y)  Corbett  V.  Pesthall,  Toth.  109;  Anon.,  Sty.  128;  Dowdswell  v.  Dovvdswell,  Chan. 
Ca.  261;  Anon.,  11  Mod.  111. 

(s)  Ashmond  v.  Ranger,  12  Mod.  379  ;  S.  C.  nom.  Ashmead  v.  Ranker,  I  Ld.  Ravm. 
552  ;  S.  C,  2  Salk.  638  ;  1  Com.  Rep.  71 ;  S.  C,  Holt,  162  ;  S,  C,  Fort.  152. 


450  crabb's  law   of   real  property. 

the  lord,  for  the  copyholder  has  as  great  an  interest  in  the  timber  trees  as 
he  has  in  the  messuage  which  he  holdeth  by  copy  ;(o)  but  a  copyholder 
may  not  cut  down  trees,  or  do  any  other  injury  to  the  freehold,  without -the 
lord's  license  ;  therefore,  a  custom  that  a  copyholder  for  life  may  cut  down 
and  sell  timber  trees  at  pleasure  is  void  ;(^)  although,  by  special  custom,  a 
copyholder  of  iiijieritance  may  cut  down  trees,  for  he  has  a  quasi  inherit- 
ance in  the  copyholds,  and  so  he  hath  in  the  trees,(c)  yet,  without  a  special 
custom,  no  copyholder  can  commit  waste  ;{d)  so,  in  the  absence  of  custom, 
it  has  been  held,  that  a  copyholder  cannot  cut  down  trees. (e) 

850.  It  is  however  a  good  custom  that  copyholders  in  fee  shall  have  the 
loppings  of  pollingers,  and  the  lord  cannot  cut  them  down,  for  that  would 
deprive  the  copyholder  of  the  future  loppings ;(/)  and  a  copyholder  may 
maintain  trespass  against  the  lord,  quare  dausion  /regit  et  arborem  suam, 
«§-c.  succidit,  because  of  the  interest  which  the  copyholder  has  in  the  trees, 
see  supra,  §  849  ;  so,  it  was  the  unanimous  decision  of  the  Court,  in  Ash- 
^  mond,  or  Ashmead  v.  Ranger,(g-)  *that  trespass  would  lie  by  the 

[^660J  (,Qpy}^oi^gj.  foj.  life  against  the  lord,  for  cutting  trees  on  the  estate, 
and  not  leaving  sufficient  for  repairs,  the  custom  being  that  every  copyholder 
for  life  shall  have  timber  trees,  &c.,  for  the  reparation  of  the  premises  ;  a~nd 
this  decision  was  affirmed  in  error  in  the  Exchequer  Chamber,  but  both  the 
judgments  were  reversed  in  Dom.  Proc,  ten  Lords  being  for  the  affirming, 
and  eleven  for  the  reversal,  and  it  was  there  said,  the  tenant  could  not  cut 
the  trees,  and  if  the  lord  could  not,  then  no  body  could,  and  they  must  rot  on 
the  land  ;  as  to  the  tenant's  right  to  estovers,  see  post,  §  851. 

The  tenant's  interest  in  the  trees  is  not  confined  to  the  use  of  them  for 
repairs,  &c.,  or  domestic  purposes,  for  he  has  an  interest  in  the  fruit  and 
shade,  &c.  ;(A)  and  so,  if  birds  build  nests  in  the  trees,  the  eggs  are  the 
tenant's,  and  this,  it  is  gaid,  shews  that  he  has  a  possessory  interest  in  the 
trees,  though  his  estate  be  but  for  years. (i) 

The  tenant  has  also  such  an  interest  in  the  trees  that  he  may  maintain  an 
action  on  the  case  against  a  stranger  for  cutting  down  trees,  and  so  may  the 
lord  for  the  same  trespass  done  to  the  inheritance. (A-) 

851.  When  the  custom  is  to  have  wood  for  repairs  or  other  necessary 
uses,  the  right  to  sell  any  part  of  it  will  not  be  supported  by  any  thing  but 
the  clearest  evidence  of  usage  ;  therefore  where  the  tenants  covenanted  with 
the  lord  that  they  would  not  cut  down,  sell,  or  dispose  of  any  wood  without 
the  license  of  the  lord,  held,  in  an  action  against  a  tenant  for  cutting  down 
and  selling  wood,  that  evidence,  that  the  tenants  of  defendant's  estate  had, 
for  thirty  years  and  upwards,  publicly,  and  without  interruption  from  the 

(o)  Hej^don  and  Smith's  case,  13  Co.  69 ;  see  infra,  §  850. 

Ih)  Rockey  v.  Huogens,  Cro.  Car.  220  ;  S.  C.  nom.  Rockcj-  v.  Huggins,  W.  Jo.  245  ;  S. 
C.  nom.  Rooke  and  Hugg-ens,  1  Roll.  Abr.  560;  S.  P.,  Powel  v.  Peacock,  Cro.  Jac.^30. 

(c)  Rockey  v.  Hugg-ins,  sup. ;  see  also  S.  P.,  Glascock  v.  Peche,  4  Leon.  238  ;^  S.  C, 
Roll.  Abr.  560  ;  S.  C,  cited  2  D'Anv.  426. 

(<2)  Ashmond  v.  Ranger,  sup.  (e)  East  v.  Harding,  Cro.  El.  498. 

(/)  Stebbing  V.  Gosnal,  Cro.  El.  629  ;  S.  C,  1  Roll.  Abr.  108.  376. 
•Ce)  Sup.,  §  849.  -  ^  (A)  2  H.  4,  pi.  12. 

(i)  Ashmond  v.  Ranger,  12  Mod.  379. 

(/t)  Co.  Cop.,  s.  51,  tr.  119  :  3  Lev.  231. 


COMMON    COPYHOLDS.  451 

lord,  and  with  his  knowledge,  cut  and  sold  the  planted  wood  on  the  estate, 
in  large  quantities,  was  admissible,  but  not  ^evidence  of  reputation  p:i?ggi-] 
that  the  tenants  had  the  right  of  so  doing  ;(/)  and  it  is  a  question  for  L 
the  jury  to  decide  whether  trees  were  cut  down  for  the  purpose  of  repair- 
ing the  premises  bond  fide,  and  were  in  a  course  of  application  for  that 
purpose,  or  whether  there  were  evidence  that  they  were  to  be  applied  to 
any  other  purpose. (m) 

852.  Although  the  tenant  has  a  possessory  property  in  the  trees,  3''et 
when  the  possession  is  gone  the  property  is  gone  ;(n)  but  as  to  pollards, 
dotards,  bushes,  &c.,  the  law  is  otherwise,  and  if  thrown  down  they  belong 
to  the  tenant,  Countess  of  Cumberland's  case  ;(o)  Herlakenden's  case,(7}) 
which  were  cases  relating  to  lessees  at  common  law  ;  see  also  Berrjj-  v. 
Heard,(7)  Gordon  v.  Harper,(r)  Berriman  v.  Peacock  \{s)  see  also  further, 
under  Estates  for  Life,  &c. 

« 

2.  Rights  in  Mines. 

853.  In  the  absence  of  any  special  custom,  the  copyhold  tenant  has  a 
possessory  interest  in  the  mines,  and,  by  custom,  he  may  have  not  only  a 
right  of  possession,  but  also  a  right  of  property  in  the  same.  The  lord,  on 
the  other  hand,  has  the  right  of  property,  but,  without  a  special  custom,  he 
has  no  right  to  enter  upon  the  lands  of  the  copyhold  tenants  to  search  for 
and  obtain  the  minerals,  unless  he  has  previously  had  their  consent,  and 
thus  it  is  laid  down  in  a  book  of  authority  : — "  It  seems  to  me  that  a  copy- 
holder of  inheritance  cannot,  without  a  special  custom,  dig  for  mines,  neither 
can  the  lord  dig  in  the  copyholder's  lands,  for  the  great  prejudice  he  would 
do  to  the  copyhold  estate  ;  and  the  copyholder  himself  seems  to  have  no 
interest  ia  the  inheritance. "(/) 

*854.  It  seems  also  now  to  be  settled,  that  if  the  lord  enter  upon  r^nr-^-y 
the  copyhold  tenant's  lands  to  dig  for  mines  without  his  consent,  the  L  -^ 
latter  may  have  his  remedy  against  him  as  a  trespasser.  This  last  point 
was  however  disputed  in  one  case,  although  the  Court  inclined  to  the 
opinion  that  such  an  entry  by  the  lord  would  be  a  trespass. (?^)  In  a  prior 
case,  where  the  lord  granted  all  coal-mines  within  a  manor  (parcel  of  which 
was  copyhold  for  life)  to  J.  S.,  after  which  he  entered  the  copyhold  land, 
and  dug  a  new  pit  therein  during  the  life  of  the  copyholder,  and  took  the 
coals,  held,  that  the  lessee  might  have  his  action  against  the  lessor,  for 
neither  the  lessee  nor  the  lessor  could  enter  upon  the  copyhold  to  dig  the 
coals,  for  the  copyholder  should  have  trespass  for  breaking  his  close,  and. 
digging  his  coals  ;(u)  so,  in  a  subsequent  case,  the  Lord  Chancellor  held, 

(Z)  Blacket  v.  Lowes,  2  M.  &  S.  494.  (m)  Foley  v.  Wilson,  11  East,  56. 

(n)  Anon.,  11  Mod.  95;  and  see  also  Brownl.  42i  ;  Ailner's  case,  1  Keb.  691. 
(0)  Moor,  814.  (/>)  4  Co,  62. 

(o)  Cro.  Car.  242  ;  S.  C,  Palm.  327.  (»•)  7  T.  R.  13. 

(s)  9  BiniT.  384.  (0  Gilb.  Ten.  327. 

(u)  Rutland  (Countess)  v.  Gie,  1  Sid.  1.52 ;  S.  C.  noni.  Countess  of  Rutland's  case,  1 
Lev.  107 ;  S.  C.  noni.  Rutland  (Lord)  v.  Greene,  1  Keb.  558. 
(»)  riayer  v.  Roberts,  W.  Jo.  243. 


452  crabb's  law   of  real  property. 

that  if  there  were  no  custom  to  regulate  it,  neither  a  customary  tenant  with- 
out license  from  the  lord,  nor  the  lord  without  the  consent  of  the  tenant,  could 
open  and  work  new  mines. (x)  In  Bourne  v.  Taylor,(2/)  where  all  the 
above-mentioned  cases  (see  supra,  §  853)  are  cited  and  commented  upon, 
it  was  expressly  held,  that  the  lord  of  a  manor,  as  such,  has  no  right,  with- 
out a  custom,  to  enter  upon  the  copyholds  within  his  manor,  under  which 
there  are  mines  and  veins  of  coal,  in  order  to  bore  for  and  work  the  same, 
and  the  copyholder  may  maintain  trespass  against  him  for  so  doing  ;  and, 
lastly,  it  is  said  in  Grey  v.  Northumberland  (Duke),(z)  "From  that  case, 
(viz.  Bourne  v.  Taylor,  sup,),  I  collect  that  the  lord  of  a  manor  may  be  in 
the  same  situation  with  respect  to  mines  as  in  respect  to  trees ;  that  is, 
the  property  may  be  in  him ;  but  it  does  not  follow  that  he  can  enter  and 
take  it,  without  consent,  which  must  be  acquired  by  purchase  or  other- 
wise, "(a) 

-.  *855.  The  possessory  right  of  the  tenant  extends  so  far  that  the 
L  J  possession  is  in  him,  from  the  surface  down  to  the  centre  of  the 
earth,  according  to  the  general  rule,  that  he  who  has  the  surface  has  the 
subsoil,  and  he  may  recover  substantial  damages  for  any  actual  injury  done 
to  the  surface  ;  therefore  it  was  held,  that  the  trespass  was  maintainable  by 
a  copyholder  against  the  owner  of  an  adjoining  collier}',  for  breaking  and 
entering  the  subsoil  and  taking  coal  therein,  although  no  trespass  was  com- 
mitted on  the  surface,  Lewis  v.  Branthwaite  ;(i)  and  it  was  also  said  in  this 
case,  "  Although  the  property  in  the  mine  may  be  in  the  lord,  he  has  not 
such  a  possessory  right  as  to  maintain  trespass  against  a  wrongdoer."(c) 
But  as  to  the  right  to  take  the  minerals,  it  appears  that  a  copyholder  may 
acquire  a  right  to  certain  minerals  by  custom,  as  to  dig  marl,  clay,  &c.,  for 
repair,  in  the  same  manner  as  he  acquires  a  right  to  cut  down  trees,  see 
ante,  §§  849  et  seq.  ;{d\  yet  although  a  distinct  positive  usage  for  the 
customary  tenant  to  take  the  minerals  might  be  vaHd  in  law,  it  is  incumbent 
on  the  tenant  to  prove  the  custom,  otherwise  the  right  will  remain  in  the 
lord  ;(e)  so,  although  a  tenant  might  do  one  sort  of  waste,  as  to  cut  dowa 
timber,  that  was  no  evidence  that  he  could  commit  another  kind  of  waste, 
as  that  of  disposing  of  minerals. (/)  The  interest  of  the  lord,  on  the  other 
hand,  is  not  derived  from  custom,  but  is  that  which  he  has  at  common  law, 
or  which  is  reserved  to  him  out  of  his  original  grant. (o-) 

856.  If  the  minerals  are  once  severed  from  the  inheritance,  whether  by 
the  copyhold  tenant  or  a  stranger,  the  lord  will  be  entitled  to  recover  them 
in  an  action  of  trover,  for  they  are  like  trees  felled,  which  belong  as  per- 

(a;)  Winton  (Bishop)  v.  Knight,  1  P.  VVms.  406. 

(y)  10  East,  189.  (z)  17  Ves.  283. 

(a)  Per  Ld.  Eldon,  C, ;  Grey  v.  Northumberland  (Duke),  17  Ves.  282. 

(6)  3  B.  &  Ad.  437. 

(c)  Per  Littledalc,  J.,  Lewis  v.  Branthwaite,  3  B.  &  Ad.  437. 

{(l)  Winchester  (Bisliop)  v.  Knip-ht,  1  P.  Wms.  406  ;  Gilb.  Ten.  327. 

(e)  Rowe  v.  Brenton,  8  B.  &,  C.  737  ;>  S.  C,  3  Man.  &  Ry.  133. 

(/)  Winchester  (Bisliop)  v.  Knifirht,  sup. 

(g)  Folkard  v,  Hemmett,  5  T.  R.  417,  n. 

»Eng.  Com.  Law  Reps.  xv.  335. 


COMMON   COPYHOLDS.  453 

sonal  chattels  *to  the  owner,  whose  right  of  possession  has  accrued,  r-^^^r-t 
see  ante,  §  25  ;(/'*)  and  so,  where  the  lord  himself  granted  all  the  L  J 
coals  within  the  manor  for  a  term,  and  afterwards  entered  upon  the  copy- 
hold and  dug  for  coals,  it  was  held,  that  the  lessee  might  recover  those  that 
were  so  dug.(i) 

857.  Mines  are  a  part  of  the  demesnes  of  a  manor,  and  not  a  distinct 
property  from  the  freehold  ;  therefore,  if  it  is  intended  to  except  them  from 
the  grant  of  any  waste  on  the  enfranchisement  of  copyholds,  the  right  must 
be  reserved  in  expressed  terms ;  thus,  where,  by  the  terms  of  an  inclosure 
act,  a  certain  portion  of  the  wastes  of  the  manor  was  allotted  to  the  lord  in 
lieu  of  his  right  and  interest  in  the  soil,  and  the  residue  was  to  be  allotted 
to  the  several  tenants  in  fee,  discharged  from  all  customary  tenures,  rents, 
fines,  &c.,  a  saving  clause,  reserving  all  seigniories  incident  to  the  manor, 
and  all  rents,  fines,  services,  &c.,  and  all  other  royalties  and  manorial  juris- 
dictions whatsoever,  will  not  reserve  mines  under  those  allotments  to  the 
tenants  ;(A')  although  it  appeared  by  a  lease  that  w^as  unexpired  at  the  time 
of  passing  the  act,  that  the  right  of  digging  for  the  mines  had  been  exer- 
cised by  the  lord  of  the  manor,(A:)  it  being  held,  that  the  mines  are  part  of 
the  soil,  and  passed  by  that  word  in  the  allotments  to  the  several  proprie- 
tors, and  that  under  the  saving  clause  nothing  was  reserved  to  the  lord 
but  rights  of  an  incorporeal  nature,  Avhich  are  quite  distinct  from  the 
soil.  (A-) 

3.  Right  of  Common. 

858.  By  presumption  in  law,  the  exclusive  property  in  all  wastes  and 
commons  belongs  to  the  lord,  but  evidence  may  be  adduced  to  shew  that 
commoners  or  others  have  also  an  interest ;  and  although  a  custom  to  exclude 
the  lord  totally  from  the  profits  of  the  soil  Avould  be  unreasonable,  yet  a  pre- 
scription *to  have  the  sole  right  of  pasture  to  the  exclusion  of  the  p^=g/>e-| 
lord  has  been  estabhshed ;(/)  for,  notwithstanding  this  prescription  L 

for  the  sole  pasture,  yet  the  soil  is  the  lord's,  and  he  has  mines,  trees,  bushes, 
&c.,  and  he  may  dig  for  turves  ;(m)  and  it  is  said,  that  such  a  grant,  that  is, 
of  the  sole  pasturage,  would  be  good  at  this  day  ;(m)  so,  a  lord  might  grant 
to  his  tenants  to  have  common,  excluding  himself,  but  such  a  common  is  not 
good  by  prescription  ',{in)  so,  though  the  lord  may  establish  his  general  right 
to  all  tin  mines  within  the  manor,  j'et  consistently  therewith  the  tenants  of 
certain  tenements  in  a  vill  within  the  manor,  some  of  them  freehold,  and 
some  customary,  may  by  acts  of  ownership  for  more  than  twenty  years, 

Qi)  Player  v.  Roberts,  W.  Jo.  243 ;  Rowe  v.  Brenton,  8  B.  «fc  C.  737;'  S.  C,  3  Man.  & 
Ry.  133.  (?)  Pla3'er  v.  Roberts,  sup. 

(k)  Townley  v.  Gibson,  2  T.  R.  701. 

(Z)  North  V.  Coe,  Vaugh.  251 ;  .S.  C.  nom.  North  v.  Cox,  1  Lev.  253  ;  Hoskins  v.  Robins, 
2  Saund.  324  ;  S.  C,  1  Vent.  123 ;  S.  C.  nom.  Hopkins  v.  Robinson,  2  Lev.  2  ;  S.  C,  1 
Mod.  74;  2  Pollexf.  13;  2  Keb.  842  ;  see  also  Kentick  v.  Pargiter,  Cro.  Jac.  208 ;  S.  C. 
nom.  Kenrick  v.  Pargiter,  Yelv.  129;  Douglas  v.  Kendal,  Cro.  Jac.  256;  Pitt  v.  Chick, 
Plutt.  45. 

(m)  1  Mod.  74. 

aEng.  Com.  Law  Reps.  xv.  335. 


454  crabb's  law   of   real   property. 

establish  their  right  to  copper  mines,  as  well  under  the  waste  and  customary 
lands  as  under  the  freehold  lands. (n) 

859.  "The  lord  by  granting  rights  of  common  on  his  waste  does  not 
thereby  exclude  himself  or  his  tenants  from  all  use  of  the  waste  on  which 
the  rioht  of  common  is  to  be  exercised,  but  merely  grants  to  others,  in  com- 
mon with  himself  and  his  tenants,  certain  rights  upon  that  waste  ;  all  that 
the  lord  has  not  granted  remains  in  him.  He  may,  therefore,  apply  the 
waste  to  any  purposes  not  inconsistent  with  the  rights  which  he  has  previously 
granted  to  the  commoners  ;"(o)  but  an  unlimited  and  unrestricted  right  to 
abridge  the  rights  of  the  commoners,,  and  to  confer  in  severalty  upon  any 
person,  from  time  to  time,  such  portions  of  the  waste  as  the  lord  in  his  dis- 
cretion should  think  fit,  has  been  held  to  be  utterly  inconsistent  with  an 
existing  right  of  common,  and  as  tending  to  annihilate  the  rights  of  the 

^  commoners  akogether,  *Arlett  v.  Ellis,(/J)  recognising  Badger  v. 

L  -I  Ford,(<7)  where  a  custom  for  the  lord  to  grant  leases  of  the  waste  of 
the  manor  without  restriction  was  held  bad  in  point  of  law,  and  distinguish- 
ing these  cases  from  Bateson  v.  Green, (r)  w4iere  the  right  of  digging  for 
clay,  having  been  proved  to  have  existed  at  all  times  in  the  lord,  was  held 
to  be  good,  although  it  partially  abridged  the  rights  of  the  commoners  ;  also 
from  Clarkson  v.  Woodhouse,(5')  where  a  custom,  that  when  certain  parti- 
cular portions  of  land,  which  had  been  destined  for  turbary,  ceased  to  have 
the  power  of  producing  turbary,  the  owner  of  the  waste  should  be  at  liberty 
to  take  that  portion  to  himself,  was  held  good;  because  the  owner  in  that 
case  took  nothing  from  the  commoners  which  had  been  originally  appropri- 
ated to  them  for  purposes  ©f  pasture  ;(s)  also  from  Folkard  v.  Hemmett, 
whfere  the  grant  of  the  soil  of  the  waste  by  the  lord  was  held  to  be  good, 
because  such  grant  had  been  made  with  the  consent  of  the  homage  ;(/)  see 
further  on  the  rights  and  interest  of  the  lord  and  the  commoner,  ante,  §§  314 
et  seq. 

860.  A  copyholder  can  claim  right  of  common  by  custom  only,  for  he  has 
common  by  reason  of  the  custom,  which  annexes  the  same  to  his  customary 
estates,  and  therefore  if  a  copyholder  purchase  the  freehold  of  his  copyhold 
estate,  his  right  of  common  is  destroyed  ;(.r)  and  where  copyholders  claim 
common  on  the  several  pasture  in  the  lord's  soil,  it  is  not  necessary  to  show 
what  estate  they  have  in  their  copyholds,  for  be  their  several  estates  either 
in  fee,  or  for  life,  or  for  years,  yet  the  custom  hath  annexed  this  sole  pasture 
as  a  profit  a  prendre  to  their  estates  for  the  time  being ;(«/)  so,  therefore, 
where  a  man  staled  himself  to  be  a  customary  tenant  of  a  manor,  according 
pitppHj.-]  to  the  custom  of  the  manor,  of  lands  *which  were  parcel  of  the 
L  -'  manor,  and  holden  by  copy  of  the  court-rolls,  it  was  held  sufficient 
to  support  his  claim  to  common,  without  adding  that  he  was  tenant  "  at  the 

(n)  Curtis  v.  Daniel,  10  East,  273. 

(o)  Per  Bailey,  J.,  Arlett  v.  Ellis,  7  B.  &  C.  3G2.»  (p)  7  B.  &  C.  365.i> 

(9)  3  B.  &  A.  153.«  (r)  5  T.  R.  411.  (s)  4  T.  R.  412,  n. 

(/)  Id.  368.  (x)  Marsham  v.  Hunter,  Cro.  Jac.  253. 

(y)  Hoskins  v,  Robins,  2  Saund.  324  ;  ante,  §  858. 

>Eng.  Com,  Law  Reps.  xiv.  53.     •'Id.     'Id.  v.  247. 


COMMON     COPYHOLDS.  455 

will  of  the  lord;"(2)  but  it  is  otherwise  with  respect  to  any  tenants  of  free- 
hold estates  at  common  law,  for  if  they  claim  anysuch  benefit,  they  must 
show  their  estates,  and  prescribe  in  the  name  of  the  tenant  in  the  fee  by  a 
que  estate;{z)  copyholders,  however,  cannot  as  a  rule  claim  common  by 
prescription,  for  they  cannot  prescribe  at  all  against  their  lord,  nor  against 
any  other,  but  only  in  the  name  of  their  lord  ;(z)  see  further  as  to  prescription 
by  copyholders,  under  Title  to  Things  Real. 

A  claim  of  common  by  a  copyholder,  to  be   good,  must  be  both  certain 
and  reasonable. (a)     It  is  a  good  custom  for  a  copyholder  to  have  the  lop- 
pings of  the  trees,  and  that  on  that  account  the  trees  should  not  be  cut  down 
by  the  lord,  because  the  tenant  has  a  future  as  well  as  present  interest  in  the 
trees  ;(6)  so,  a  copyholder  may  claim  estover,  and  a  custom  to  cut  down 
wood  for  repairs  or  other  necessary  uses  is  good  ;(c)  but  such  a  custom  will 
not  warrant  the  sale  of  the  wood;(c)  unless  sold  to  defray  charges  of  repara- 
tion ;{d)  so,  a  custom  to  dig  for  limestone,  marl,  clay,  and  gravel,  for  the 
same  purposes  ;(e)  but  in  that  case  it  is  necessary  to  allege  not  only  that 
the  house  was  out  of  repair,  but  that  the  party  entered  for  the  purpose  of 
getting  materials  for  the  necessary  repairs  of  the  house,  and  that  they  were 
used  for  that  purpose  ;(/)  so,  a  custom  for  a  copyholder  to  have  turbary 
sufficient  for  the  house  to  which  it  is  appendant  is  good,(^-)  or  to  dig  for 
materials  for  the  ^improvement  of  the  land,(/i)  but  not  to  cut  turf  p^Qgg-i 
without  limit,  for  the  ornament  of  the  garden,  or  for  any  other  fan-  L 
ciful  improvement  ;(/t)  so,  a  custom  for  the  proprietors  of  ships  to  dig  for 
ballast  is  good,  because  it  is  for  the  maintenance  of  navigation  ;(i)   but  a 
custom  for  the  lord,  or  a  customary  tenant,  to  sink  pits  in  the  land  of  other 
customary  tenants,  and  to  lay  the  coals  on  the  land,  and  let  them  remain 
there  an  indefinite  time,  and  to  lay  wood  and  other  materials  there  at  his 
pleasure,  held  to  be  a  bad  custom,  as  being  both  uncertain  and  unreason- 
able. (A-) 

4.  Wardships,  ^'C. 

861.  There  are  some  other  rights  to  which  the  lord  of  the  manor  may  be 
sometimes  entitled,  namely,  a  right  to  appoint  a  guardian,  and  a  right  to  the 
custody  of  lunatics,  or  to  the  lands  of  an  alien.  The  first  of  these,  as  before 
observed,  is  not  of  common  right,  see  ante,  §  817  ;  and  as  to  the  second,  it 
is  not  settled  whether  the  lord  has  any  power  over  the  land  of  a  lunatic, 
except  by  custom ;  therefore,  where  the  lord  had  granted  the  custody  of  a 
lunatic's  copyhold  land,  the  Court  held,  that  an  action  touching  the  land  was 
to  be  brought  in  the  name  of  the  lunatic,  for  that  no  interest  was  gained  in 
the  land  by  the  committee,  he  being  no  more  than  a  bailiff.  Cocks  v.  Dar- 

(z)  Crowther  v.  Oldfiekl,  2  Ld.  Raym.  1225. 

(a)  1  Inst.  59 ;  1  Leon.  11  ;  Davis,  32,  33 ;  1  Roll.  Abr.  565  ;  2  Roll.  Abr.  264. 

(b)  Stcbbing  v.  Gosnal,  Cro.  El.  629. 

(c)  Foley  V.  Wilson,  11  East,  56. 

{d)  Sandford  v.  Stevens,  3  Bulsf.  282.  (e)  Dubcrley  v.  Page,  2  T.  R.  391. 

(/)  Peppin  V.  Skakespear,  6  T.  R.  741. 

\g)  Tyrringliam's  case,  4  Co.  37. 

Oi)  V/ ilsoii  V.  Willes,  7  East,  127. 

(i)   Lynn  Regis  (Mayor,  &c.)  v.  Taylor,  3  Lev,  160, 

(A-)  Broadbent  v.  Wilks,  Willes,  360. 


456  crabb's  law  of  real  property. 


1 


son  ;(Z)  and  it  was  there  said,  that  the  lord  had  no  povver  over  the  lunatic's 
land  without  a  custom,  for  the  imitation  of  the  king's  power  over  freeholds 
was  not  a  consequence,  for  although  the  17  E.  2  (Stat.  Prerog.)  was  but  an 
affirmance  of  the  common  law  in  the  case  of  the  king,  yet  the  collateral 
incidents  of  estates,  as  dower,  curtesy,  wardship,  and  the  hke,  were  not 
without  special  custom ;(/)  but  in  Beverley's  case(7??)  it  is  said  that  the 
^  -,  king  shall  not  have  the  custody  of  the  land  *which  an  idiot  holds  by 
["  669J  ^^^^y^  ^^^  ^^^^  jg  ^^^  ^^  ^g^^^g  ^^  ^^.jH  i^y  ^j^g  common  law,  it  would 

be  a  great  prejudice  to  the  lord  of  the  manor;  yet,  held  in  another  case, 
that  an  alienation  made  by  an  idiot  after  office  found  should  be  avoided  ;(n) 
an  idiot,  however,  could  not  be  ordered  in  the  Court  of  Wards  for  his  copy- 
hold, it  being  the  rule  that  if  an  idiot  had  not  any  goods  or  chattels,  or  lands, 
except  copyhold  lands  holden  of  a  common  person,  the  king  should  not  have 
the  custody,  but  the  lord  of  whom  the  copyhold  is  holden  ;  but  if  he  had 
any  other  lands,  then  the  copyhold  land  also  ;(o)  and  so,  where  a  copyholder 
was  mutus  et  surdus,  it  was  held,  that  the  lord  and  not  the  king,  should 
have  the  custody,  for  otherwise  the  lord  should  be  prejudiced  in  his  rents 
and  services. (yj) 

862.  In  the  case  of  copyhold  lands  purchased  by  an  alien,  as  he  cannot 
retain  them,  it  seems  not  to  be  settled  whether  the  queen  or  the  lord  may 
take  advantage  of  the  purchase,  but  the  better  opinion  appears  to  be  that 
the  queen  cannot  take  them  except  as  a  trust  ;{q)  see  further,  ante,  §  832; 
and  as  to  the  copyholder's  power  to  grant  leases,  see  post,  §  1399. 


[*670]    *v.  ^o\3i  a  eopn^oltr  mrri)  t)c  lost  or  tjcstronrt. 

§  863.  A  copyhold  estate  may  be  lost  or  destroyed  in  three  ways,  namely, 
1.  By  extinguishment.     2.  By  forfeiture.     3.  By  enfranchisement. 

(l)  Hob.  215  ;  S.  C,  Noy ;  Poph.  141. 
{m)  4  Co.  126  b. 

(r?)  Dy.  302,  recognized  in  Beverly's  case,  4  Co.  124. 
(o)  Roger's  case,  cited  marg.  Dy.  302. 

(/))  Eavcrs  V.  Skinner,  Cro.  J.  105.  ^-.-oT-./-. 

Cq)  1   Dy.  marg.  2  b;  Id.  marg.  302;  K.  v.  Holland,  Sty.  20.  40.   lO.  Bi    fe.    C, 
All.  14, 


COMMON     COPYHOLDS. 


457 


I.  3S):tfii2uiS!)meut  of  a  Copwljolii. 


§  864.  Copyhold  cominor  to  the  Freehold. 

865.  Freehold  coining  to  tlie  Copyhold, 

866.  Partial  or  total  Extinguishment. 

867.  Suspension  or  Extinguishment. 

868.  Effect  of  Unity  of  Possession  in  the 

same  Person. 

869.  Unity   of  Possession  in   the    same 

Person  in  different  Rights. 


§  870.  Consequences    of  the    Extinguish- 
ment. 
Copyhold    Lands    pass     with     the 

Manor,  when. 
Merger. 
871.  Extinguishment  of  the  Incidents  to 
the  Copyhold,  or  otherwise. 


§  864.  A  copyhold  is  said  to  be  extinguished  when  the  freehold  and  copy- 
hold interest  unite  in  the  same  person  and  in  the  same  right,  which  may  be 
either  by  the  copyhold  interest  coming  to  the  freehold,  or  by  the  freehold 
interest  coming  to  the  copyhold. (?•) 

The  copyhold  may  come  to  the  freehold  if  the  copyholder  conveys  his 
interest  to  the  lord,  whether  by  surrender  or  release,  or  bargain  and  sale  ;(s) 
so,  if  the  lord  sell  the  freehold  of  inheritance  of  the  copyhold  to  another, 
and  then  the  copyholder  release  to  the  purchaser,  this  will  extinguish  the 
copj-hold,  for  although  a  release  could  not  in  its  own  nature  faccording  to 
the  old  law(?)]  pass  away  a  possession,  yet  it  *might  amount  to  a  p*p~i-i 
signification  of  the  tenant's  mind  ;{u\  and  a  copyholder  being  but  a  L  -' 
tenant  at  will,  anything  amounting  to  a  determination  of  the  copyholder's 
will  is  sufficient  to  extinguish  the  copyhold,  as  if  a  copyholder  comes  into 
court  and  says  that  he  is  weary  of  his  copyhold,  and  requests  the  lord  to 
take  it,  that  is  a  surrender  ;(.r)  and  in  one  case  it  was  held,  that  a  copy- 
holder accepting  his  land  to  hold  of  the  lord  by  bill,  under  his  hands,  instead 
of  by  copy,  determined  the  copyhold  interest ;(?/)  so,  if  the  copyholder  sur- 
render to  the  use  of  the  lord,  (even  though  the  lord  be  a  disseisor,)  it  was 
much  questioned  whether  this  were  an  extinguishment  or  not.  Moor  v. 
Pit  •.[z'j  but  the  Court  of  C.  P.  was  of  opinion  in  this  case,  that  it  was  a 
void  surrender,  and  the  copyhold  not  extinguished, («)  and  this  judgment 
was  affirmed  in  error. (6) 

So,  if  lands  escheat  or  are  forfeited  to  the  lord,  it  is  an  extinguishment  of 
the  copyhold  interest. (c) 

Although  the  lord  may  determine  his  estate  by  any  act,  yet  the  lord 
cannot  destroy  the  estate  of  the  copyholder  by  any  act  of  his,  as  by  the 
severance  of  the  freehold  of  the  land  held  by  copy,  for  the  custom  has 


(r)  2  Gilh.  Ten.  300. 

(s)  Blemmerhasset  v.  Humberstone,  Hutt.  65 ;  S.  C.  nom.  Blenerhasset  v.  Humberstone, 
W,  Jo.  41 ;  S.  C.  nom.  Hasset  and  Hanson,  Winch,  166;  Scroggs,  192. 

{t)  Prec.  Conv.,  3rd  edit.  tit.  Release. 

(m)  Anon.,  Cro.  El.  21 ;  Wakeford's  case,  1  Leon.  102 ;  Blemmerhasset  v.  Humberstone, 
Hutt.  65. 

(ar)  Blemmerhasset  v.  Humberstone,  sup. 

(y)  Collman  v.  Portman,  1  Leon.  191 ;  S.  C.  nom.  Colman  v.  Bcdil,  1  Andr.  199. 

(2)  2  Mod.  287  ;  S.  C,  1  Frcem.  24. 

(o)  Moor  V.  Pit,  1  Show.  153;  Skinn.  28. 

(6)  S.  C.  1  Vent.  359  ;  S.  C,  T.  Jo.  154;  see  also  1  Watk.  Cop.  92.  359. 

(c)  Beverham's  case,  2  Vent.  345 ;  S.  C,  2  Chan  Ca.  194. 


458  crabb's   law  of  real   property. 

established  his  estate,  so  that  the  lord  cannot  oust  him,  so  long  as  he  pays 
and  performs  his  customs  and  services.(rf) 

865.  A  copyhold  interest  may  also  be  extinguished  by  the  annexation  of 
the  freehold  to  the  copyhold  ;  thus,  if  a  copyholder  in  fee  accept  a  lease  for 
years  of  the  same  land  from  the  lord,  this  determines  his  copyhold 
[""QTZj  g^j^^jg  .^g^  gp^  ^j^  ^Yie  lord  lease  the  copyhold  to  another,  and  the 
copyholder  accept  an  assignment  from  the  lessee. (/)     If  a  copyholder  take 
a  conveyance  of  the  manor  in  joint-tenancy,  it  appears  that  the  copyhold 
interest  will  be  extinguished,  for  joint-tenants  are  seised  per  mie  et  per 
toiit;{g)  so,  if  a  manor  be  leased  for  years,  and  a  copyholder  purchase  the 
reversion  in  fee,  by  this  the  copyhold  is  destroyed,  and  the  lessee  of  the 
manor  may  oust  the  copyholder,  and  hold  the  land  during  his  term  ;{g)  so, 
if  he  accept  a  lease  for  years  of  the  manor,  it  is  said  by  some,  that  this  is  a 
total  extinguishment  of  the  copyhold,  and  the  lessee  may  re-grant  the 
copyhold  again  to  whom  he  pleases  ;(/t)  but,  according  to  others,  it  is  only 
a  suspension  of  his  copyhold  during  the  term;(i)  so,  if  the  copyholder 
join  with  the  lord  in  a  feoffment  of  the  manor,  his  copyhold  is  thereby 
extinct ;(/)  so,  if  the  copyholder  sues  execution  upon  a  statute,  and  has  the 
manor  in  execution,  it  is  said  that  the  copyhold  is  gone,{k)  for  after  the  debt 
levied,  the  customary  interests  remains  ;(/)  and  if  the   lord    enfeoffs  his 
copyholder  to  the  use  of  another,  his  copyhold*  is  not  destroyed,  for  it  is 
saved  by  the  Stat,  of  Uses  ;(m)  so,  if  there  be  a  copyhold  for  three  lives, 
habemV  successive,  and  the  lord  by  deed  grants  the  inheritance  to  the  first, 
the  interest  of  the  second  is   not  destroyed  ;(n>  so,  if  the  lord  grants^  the 
freehold  of  a  copyholder  to  a  stranger  for  the  life  of  the  copyholder,  his 
copyhold  is  not  destroyed. (o) 

866.  There  is  a  distinction  between  a  conveyance  of  a  portion  of  copy- 
^  -^  hold  interest  by  the  tenant  to  the  lord,  *and  a  conveyance  of  a  por- 
L  -'  tion  of  the  freehold  by  the  lord  to  the  tenant,  for  the  former  operates 
as  an  extinguishment  of  the  part  only  conveyed  to  the  lord,  and  the  latter 
as  an  extinguishment  of  the  whole  tenancy  ;(;j)  therefore,  if  a  copyholder 
in  fee  surrender  to  the  use  of  the  lord  for  life,  with  remainder  over  to  a 
stranger,  or  reserving  the  reversion  to  himself,  it  will  be  an  extinguishment 
only  of  the  estate  so  limited  to  the  lord,  but  will  not  affect  the  remainder  or 
reversion  ;(</)  but,  if  a  copyholder  in  foe  accept  a  common-law  lease  of  his 
copyhold  tenement  from  the  lord  or  his  grantee,  the  whole  copyhold  interest 
will  be  extinguished. (r) 

((f)  Lane's  case,  2  Co.  17  a. 

(e)  lb.;  S.  C.  nom.  Smith  and  Lane's  case,  1  Leon,  170  ;  1  Anders.  191 ;  Gouldsb.  34, 
ca.  9 ;  Hide's  case,  4  Co.  31  b ;  S.  C,  Hide  and  Newport,  Moor,  185 ;  see  also  Kitch. 
171 ;  Co.  Cop.,  s.  62,  tr.  141,  142;  1  Walk.  Cop.  360. 

(/)  Smith  and  Lane's  case,  1  Leon.  170;  1  Anders.  191;  Goulsb.  34,  ca.  9. 

ig)  Caltli.  74.  (A)  Anon.,  Moor,  185,  ca.  330,  citing  Hide  and  Newport,  sup. 

(i)  Gybson  v.  Searls,  Cro.  Jac.  84  ;  Sav.  78,  ca.  146.  (j)  Godb.  11. 

(fe)  Com.  Dig.  Copyhold,  (L.;)  sed  contra,  Sav.  70.  (/)  Sav.  70. 

(m)  Lillin2:ston's  case,  7  Co.  39,  a.  (n)  Curtis  and  Cottcl's  case,  2  Leon.  72. 

(o)  Howard  v.  Bartlett,  Hob.  181.  (p)  Kitcli.'171. 

(9)  Podgcr's  case,  9  Co,  106,  107;  Co.  Cop.,  s.  34,  tr.  72;  see  also  Curtis  and  Cottcl's 
case,  2  Leon.  72. 

(r)  Lane's  case,  2  Co.  17  a  ;  see  ante,  §  8G5. 


COMMON    COPYHOLDS.  459 

867.  So  long  as  the  demisable  quality  of  the  estate  subsists,  the  copyhold  is 
not  extinct  ;  therefore,  where  copyholds  come  into  the  Lord's  hands  by  for- 
feiture or  escheat,  &.C.,  he  may  re-grant  them  by  the  custom  of  the  manor  ;(s) 
but,  if  he  make  a  common-law  lease,  for  life,  or  years,  or  any  other  certain 
time,  the  copyhold  is  destroyed,  because,  during  those  estates  it  was  neither 
demised  nor  demisable  by  copy  ;(^)  but  if  the  lord  keeps  it  in  his  hands,  or 
only  lets  it  at  will,  he,  his  heirs  or  assigns,  may  well  re-grant  it  at  his 
pleasure,(t<) 

868.  To  cause  a  complete  extinguishment  of  the  copyhold  estate  by  unity 
of  possession,  they  must  be  united  in  the  same  person  ;  therefore,  if  one 
seised  of  a  manor  in  right  of  his  wife,  let  lands  by  indenture  for  years,  this 
does  not  destroy  the  custom  as  io  the  feme,  it  only  suspends  it,  for  after  the 
death  of  the  husband  she  may  demise  it  by  copjr  again  ;(a.')  but  in  one  case 
it  was  held,  that  where  copyholder  in  fee  married  a  seignioress,  and  they 
suffered  a  common  *recovery  to  the  use  of  themselves  for  life,  ^j^^^^-, 
remainder  over,  it  operated  as  an  extinguishment,  because  the  hus-  L  -• 
band  gained  a  freehold ;(«/)  so,  on  the  same  principle,  if  a  person  having  a 
limited  interest  only  in  a  manor,  as  tenant  for  life,  lets  a  copyhold  parcel  of 
the  manor  for  years,  the  demisable  quality  of  the  land  is  not  destroyed,  but 
only  suspended  as  to  him  during  his  life,  and  after  his  death,  or  the  determi- 
nation of  the  particular  estate,  the  remainder-man  or  reversioner  may 
re-grant  by  copy.(;j) 

869.  Again,  to  cause  a  total  extinguishment  of  the  copyhold,  there  must 
be  unity  of  possession  in  the  same  person  in  the  same  right,  but  where  the 
interest  is  united  in  the  same  person  in  different  rights,  there  the  copyhold 
interest  will  be  suspended  only  and  not  extinguished  ;  therefore,  if  a  copy- 
holder in  his  own  right  become  seised  of  the  manor,  or  of  the  freehold  inte- 
rest in  his  copyhold  tenement,  in  right  of  another  only,  or  vice  versa,  the 
copvhold  interest  will  be  suspended  during  the  union  of  such  interests, 
Lane's  case ;(«)  see  also  Gage  v.  Acton, (6)  where  this  doctrine  is  applied 
to  common-law  interests. 

870.  Copyhold  premises  which  become  extinct  by  the  union  of  the  copy- 
hold and  freehold  will  enure  to  the  benefit  of  either  a  devisee  or  a  mortga- 
gee ;  held,  therefore,  that  under  a  devise  of  a  manor,  copyhold  premises 
parcel  thereof,  which  were  purchased  by  and  surrendered  to  the  lord  sub- 
sequent to  the  making  of  the  will,  will  pass,  and  this  notwithstanding  a 
subsequent  demise  from  year  to  year  by  the  devisor,  for,  notwithstanding 
the  purchase  of  the  copyhold  by  the  lord,  it  still  remained  parcel  of  the 
manor  ;(c)  so,  where  a  lord  mortgaged  the  manor  in  fee  and  afterwards  pur- 
chased copyholds  held  of  the  manor,  it  had  been  ^previously  deci-  ^^r.^^-. 
ded  that  they  should  enure  to  the  benefit  of  the  mortgagee ;((/)  so,  L         -• 

(s)  1  Inst.  58.  (I.)  French's  case,  4  Co.  31. 

((/)  lb. ;  see  also  Pemble  v.  Stern,  2  Keb.  213 ;  S.  C,  T.  Raym.  165 ;  see  further,  ante, 
§  821.  {x)  Co.  Cop.,  s.  62,  tr.  142. 

(y)  Anon.,  Cro.  El.  8. 

(z)  Conesbie  v.  Rusky,  Cro.  El.  459,  b  ;  Field  v,  Boothby,  2  Sid.  17.  35.  81.  137 
(a)  2  Co.  17  ;  1  Walk.  Cop.  358.  (b)  1  Salk.  326 

(c)  Hale  V.  Wegg,  6  T.  R.  708.        ^d)  Gibbons  v.  Pott,  2  Dougl.  710. 


460  crabb's  law   op   real  property.  , 

Avhere  copyhold  premises  are  purchased  by  the  lord,  tenant  for  life  of  the 
manor,  with  remainder  over,  they  will,  if  not  re-granted,  merge  in  the  inher- 
itance of  the  manor,  for  the  benefit  of  the  remainder-man  ;(e)  so,  likewise, 
for  the  benefit  of  an  executory  devisee  ;(/)  but  where  there  is  a  union  of  a 
fee  of  a  customory  freehold  with  the  estate  for  life  of  the  lord  of  the  manor, 
that  was  held  to  suspend  the  seigniory  during  the  lord's  life,  and  that  at  his 
death  the  seignior)^  revived,  and  the  fee  of  the  customary  tenements  descend- 
ed to  his  heir,  Bingham  v.  Woodgate.(g")  In  this  case  it  is  said,  "that,  if 
the  lord  had  been  seised  of  the  fee  of  the  manor,  then  the  union  would  have 
extinguished  the  customary  tenements,  but  extinguishment  takes  place  only 
when  the  two  estates  have  the  same  duration. "(A) 

871.  It  seems  to  be  settled  that  the  customs  of  freebench,  curtesy,  &c. 
will  cease  with  the  extinguishment  of  the  copyhold  tenure,  by  any  union  of 
freehold  and  copyhold  interests  ;(/)  but  with  regard  to  common  it  is  other- 
wise, for  that  is  extinguished  only  in  particular  cases. 

If,  by  custom,  all  the  copyholders  for  life  have  common  in  the  waste  of 
the  lord,  and  the  lord  grant  to  one  and  his  heirs  all  his  copyhold  messuage 
and  land  cum  pertinent  Us.  he  shall  not  have  common,  for  by  the  custom  the 
common  was  annexed  to  the  customary  estate,  which  being  destroyed  by  his 
own  act  in  making  it  a  freehold,  his  common  is  destroyed  with  it  ;(A:)  sed 
secus,  if  he  have  common  in  the  soil  of  a  stranger,  see  further,  post,  §  899. 
p;^P~p-]  But  if  *copyholders  for  life  have  used  to  have  common  in  the  waste 
L  J  of  the  lord,  or  estovers  in  his  woods,  or  other  profits  a  pendre  in  any 
parcel  of  the  manor,  and  the  lord  alien  his  wastes  or  woods  to  another,  who 
afterwards  grants  a  copyhold  messuage  for  life,  such  grantee  shall  have  com- 
mon, estovers,  &c.,  notwithstanding  the  severance,  for  the  title  of  the  copy- 
holder is  paramount,  and  the  custom  unites  the  common,  which  is  but  as 
accessary  or  incident,  so  long  as  the  messuage,  which  is  the  principal,  is 
maintained  by  the  custom ;(/)  so,  by  a  grant  of  a  manor,  with  the  exception 
of  the  wastes,  though  they  are  thereby  severed  from  the  manor,  yet  the 
copyholders  continue  to  have  a  right  of  common  by  immemorial  custom. (m) 

(c)  St.  Paul  V.  Viscount  Dudlcv  and  Ward,  15  Ves.  167. 

(/)  King  V.  Moody,  2  Sim.  &  Stu.  579.  (?)  1  Russ.  &  My.  32. 

(/i)  Per  Sir  J.  Leach,  M.  R.,  Bingliam  v  Woodgate,  1  Russ.  &  My.  32, 

(i)  Lashmer  v.  Avery,  Cro.  Jac.  126 ;  2  Sid.  19  ;  Dug-worth  v.  Radford,  W.  Jo.  462. 

(k)  Marsham  re  Hunter  v.  Marsliam,  Cro.  Jac.  253  ;   S.  C,  Yelv.  189  ;   Noy,  126. 

(/)  Swayne's  case,  3  Co.  63 ;  S.  C,  noni.  Swain  v.  Becket,  Moor,  812. 

(m)  Revell  v.  Joddiell,  2  T,  R.  415. 


COMMON    COPYHOLDS. 


461 


II.  jj^ovfcfture. 


873.  Forfeiture  for  Treason  or  Felony. 

874.  Forfeiture  for  Alienation. 

875.  By  making  Leases. 
Other  Cases  of  Forfeiture. 

876.  Cases  where  tiiere  is  no  Forfeiture. 

877.  Forfeiture  by  committing  Waste. 

878.  Exceptions  to  the  Law  of  Waste. 

879.  Forfeiture  by  Inclosure. 

880.  Forfeiture  by  denying  Services. 
Summons,  what  to  be. 
Excuses,  &,c. 

882.  Forfeiture  by  Tenant. 
Not  by  Disseisor. 
Nor  by  Surrenderee. 
Nor  by  Guardian. 

If  done  by  a  Stranger 

by  Tenant  for  Life, 
by  Tenant  in  Tail. 

883.  As   to,  if  done  by   Persons    under 

Disabilities, 


§  883. 

8P4. 
885. 

886. 


887. 


888. 

889. 
890. 
891. 

892. 


893.  Necessary. 


Exceptions. 

Feme  covert. 

Infant. 

Lord  only  can  take  Advantage  of  a 

Forfeiture. 
Forfeiture  to  the  Lord,  not  to  the 

Queen. 
Forfeiture  to  Coparcener. 
Extent  of  the  Forfeiture. 
When   holdcn   by   one    Tenure    or 

otherwise. 
How  a  Forfeiture  may  be  dispensed 

with. 
By  what  Lord. 
What  not  a  dispensation. 
Forfeiture  may  be  taken  Advantage 

of  by  Entry. 
Presentment,    when   necessary,    or 

otherwise. 
Not  necessary. 


*§  872.  The  law  of  forfeiture  as  regards  copyholds  is  in  many  p*/^-*,-. 
respects  different  from  that  which  regards  lands  of  socage  tenure ;  '-  -' 
as  to — 

1.  The  causes  of  forfeiture. 

2.  Persons  subject  to  the  forfeiture. 

3.  Who  may  take  advantage  of  a  forfeiture. 

4.  Extent  of  a  forfeiture,  and  its  consequences, 

1.   The  Causes  of  Forfeiture, 

The  principal  causes  of  forfeiture  are  as  follow: — For  treason  or  felony, 
alienation,  waste,  inclosure,  and  denying  services. 

873.  If  a  copyholder  commits  treason,  his  estate  is  forfeited  to  the  lord, 
not  to  the  queen,  except  by  the  express  words  of  an  Act  of  Parliament  ;(n) 
so,  if  a  copyholder  commits  felony,  his  estate  is  forfeited  to  the  lord  by  cus- 
tom ;(o)  and  a  custom,  that  if  a  copyholder  commits  felony,  upon  present- 
ment of  the  homage  the  lord  shall  enter,  is  good;(/j)  but  there  cannot  be  a 
forfeiture  of  copyhold  by  conviction  before  attainder,  unless  there  be  a  special 
custom  in  the  manor  to  the  contrary,  R.  v.  Willes,(5')  recognizing  Stevens's 
case,(r)  and  Lord  Cornwallis's  case,(s)  in  the  former  of  which  cases  it  was 
held,  that  there  could  be  no  forfeiture  before  attainder,  and  in  the  latter,  no 
seizure  before  attainder,  without  a  custom  •,[t\  so,  if  convicted  of  maa- 

(n)  2  Vent.  39.  (o)  Beneson  and  Strode,  Skinn.  8 ;  Pollexf.  615  ;  T.  Jo.  189. 

(  p)  Borneford  and  Packington's  case,  1  Leon.  1  ;  S.  P.,  Gittins  v.  Cowper,  2  Brownl.  917. 
(?)  3  B.  &,  A.  510.»  (r)  Cro.  Car.  556.  (s)  2  Vent.  38. 

(()  R.  V.  Willes,  3  B.  &  A.  510 ;»  see  also  Godbolt,  267;  1  Bulstr.  13. 

»Eng.  Com.  Law  Reps.  v.  361. 
December,  1846. — 30 


462  crabb's  law  of  real   property. 

slaughter,  he  does  not  forfeit  without  a  special  custom  -.(iiS  so,  not  for  out- 
lawry, unless  it  be  for  a  capital  crime. (x) 

fi^a-ya-i  *874.  If  a  copyholder  makes  an  alienation  by  deed,  it  is  a  forfeiture 
L  by  the  general  law  of  copyholds, (y)  as  a  charter  of  feoflhient  -,{2) 

and  it  is  said,  that  if  a  letter  of  attorney  be  given  to  make  livery,  it  will  be  a 
forfeiture,  although  no  livery  be  made.((T)  So,  as  a  release  grounded  on  a 
bargain  and  sale  for  a  year,  and  also  a  bargain  and  sale  inrolled,  pass  only 
the  interest  which  the  releasor  and  bargainor  may  lawfully  transfer,  they 
have  been  held  to  be  no  forfeiture  of  the  copyhold  of  which  advantage  can 
be  taken  ;(i)  so,  if  a  copyholder  for  life  makes  a  surrender  to  the  use  of 
another,  in  fee,  this  is  no  cause  of  forfeiture, (c)  because  a  surrender  like  a 
bargain  and  sale,  passes  no  more  than  what  the  surrenderor  may  lawfully 
convey,  (c) 

875.  A  lease  for  one  year  only  by  a  copyholder  is  no  forfeiture,  being 
warranted  by  the  general  custom  of  the  reahn,((/)  and  the  lessee  may  main- 
tain ejectment ;((/)  and  see  also  9  Co.  75  b  ;  1  Cro.  El.  224,  394;  Cro. 
Jac.  403;  1  Leon.  328;  Poph.  188;  Ow.  18;  Litt.  Rep.  223  ;  Hell.  12G; 
Anders.  192;  Moor,  272;  where  it  appears  that  it  was  once  doubted 
whether  to  warrant  a  lease  even  for  one  year  a  special  custom  was  not 
necessary.  If  a  copyholder  takes  upon  him  to  make  leases,  not  warranted 
by  the  custom  of  the  manor,  and  without  the  lord's  license,  this  is  a  forfeit- 
ure of  his  copyhold,  but  it  is  no  disseisin  to  the  lord,  for  the  lease  is  good 
against  every  one  but  the  lord  ;(e)  and  it  is  immaterial  whether  such  lease 
be  by  parol  or  in  writing  ;(y)  but  a  lease  to  amount  to  a  forfeiture  must  be 
-,  a*  perfect  lease,  having  a  certain  beginning  and  a  certain  end,  other- 
L  -^  wise  it  is  void,  and  carries  but  an  estate  at  will  at  most,  which  is  no 
forfeiture  ;(^)  so,  if  the  words  of  a  lease  were  doubtful,  so  that  they  might 
be  construed  into  a  covenant,  the  Court,  to  prevent  a  forfeiture,  would  take 
it  to  be  a  covenant  ;(/i)  but  Avhere  A.,  a  copyholder  for  life,  having  got  B. 
to  be  bound  with  him  in  100/.,  gave  him  a  deed,  in  which  he  covenanted 
that  B.  should  enjoy  the  lands  for  seven  years,  and  so  from  seven  years  to 
seven  years,  during  the  term  of  forty-nine  years,  if  A.  should  so  long  live, 
held,  that  these  words  were  so  clear  and  plain,  that  they  amounted  to  a  lease, 
and,  consequently,  created  a  forfeiture  ;(//)  on  the  other  hand,  where  a  copy- 
holder, by  articles  of  agreement,  covenanted  with  another  that  he  should 
hold  for  a  year  at  halves,  accordins;  to  the  custom  of  the  manor,  held,  that 
these  words  so  tied  up  the  lease,  that  if  there  were  no  custom  to  warrant 
this  manner  of  leasing,  the  lease  itself  fell  to  the  ground,  besides  that  there 
was  a  further  clause,  that  if  the  lessor  put  out  the  lessee,  he  should  be 

(u)  Jory  V.  Pawly,  1  Lev.  2G3  ;  S.  C,  2  Keb.  451. 

(X)  Litt.  Rep.  234;  Hctl.  127.  {y)  Litt.,  sect.  74. 

(2)  1  Roll.  Abr.  508,  pi.  12,  13. 

(tf)  lb. ;  but  sec  contra,  Taverner  nnd  Cromwell's  case,  3  Leon.  109  ;  Godb.269  ;  Harg. 
Co.  I-iU.  59.  a.,  n.  (3l,ca.  374  ;  1  Watk.  327  ;  1  Scriv.  Cop.  531,  3a  ed. 

(/y)  Taverner  and  Cromv/cirs  case,  sup.;  1  Inst.  59,  b. ;  Godb.  269,  ca.  374;  2 
Danv.  195. 

(c)  Foxton  and  Colston,  cited  4  Co.  23 ;  Co.  Cop.,  s.  57,  tr.  76 ;  Oldcot  v.  Level],  Moor, 
7.53;  Bird  and  Kirbv,  Cart.  238. 

{(l)  Mclwieli  and  Lutcr,  4  Co.  26  a ;  S.  C.  nom.  Melwich  v.  Luther,  1  Cro.  El.  102. 

{e)  Moor,  184  ;  1  Sa!k.  186,  pi.  5.  (/)  Moor,  392.  {g)  Gilb.  Ten.  232. 

(A)  Richards  v.  Seley,  2  Mod.  79. 


COMMON    COPYHOLDS.  463 

allowed  so  much  rent  by  way  of  retainer,  making  it  therefore  uncertain 
whether  he  should  enjoy  the  lease  during  the  whole  of  the  term  ;  so  that 
upon  the  whole  construction  this  was  held  to  be  a  covenant,  not  a  lease,  and 
adjudged  to  be  no  forfeiture  ;(z)  see  also  Hare  v.  Celey,(A:)  where  exposing 
to  half  was  held  to  be  no  lease,  it  is  only  a  liberty  to  plough  and  sow. 

To  prevent  forfeiture,  and  yet  enable  the  copyholder  to  grant  a  larger 
interest  than  what  the  custom  warranted,  various  devices  have  been  resorted 
to,  but  for  the  most  part  with  little  success  ;  thus,  where  a  copyholder  for 
life  made  a  lease  for  a  year  by  indenture  dated  such  a  day,  and  the  same 
day,  by  another  indenture  made  a  second  lease  to  the  same  party  for  a  year, 
to  commence  such  a  day,  being  two  days  after  the  expiration  of  the  first 
lease,  and  by  other  indentures  made  other  leases,  leaving  between  each 
lease  *two  days,  it  was  agreed  that  whether  the  custom  of  the  manor,  p^/^o^-. 
or  the  general  custom  of  the  realm,  allows  a  copyholder  to  make  a.  <-  -^ 
lease  for  a  year,  this  ought  to  be  a  lease  in  possession,  and  he  cannot,  after 
such  a  lease  made,  make  another  in  reversion  ;  and  these  three  leases 
being  made  all  at  one  time,  shall  be  intended  one  entire  contract,  and  so  a 
lease  for  three  years,  which  is  more  than  the  custom  warrants,  and  conse- 
quently, a  forfeiture  ;(/)  and  the  intervention  of  the  two  days  between  two 
days  was  held  to  be  fraud  and  covin,  to  defeat  the  lord  of  his  forfeiture, 
which  should  not  avail ;(/)  and  so,  where  a  copyholder  made  a  lease  for  one 
year,  and  covenanted  with  the  lessee  that  he  should  enjoy  the  land  de  anno 
annum  for  ten  years,  this  is  clearly  a  good  lease  for  ten  years,  and  will 
make  a  forfeitui-e  ;(m)  and  so  a  lease  for  one  year  only,  saving  the  last  day, 
and  sic  de  anno  in  annum,  is  a  forfeiture,  for,  at  the  least,  this  is  a  lease  for 
two  years,  and  might  be  for  twenty,  or  what  other  time  he  thought  fit,  which 
the  law  will  not  permit. (n) 

876.  But  in  some  cases  parties  have  succeeded  in  avoiding  a  forfeiture, 
as  where  a  lease  was  made  by  a  copyholder  for  a  year,  with  a  covenant  to 
renew  yearly  for  ten  years,  which  has  been  adjudged  to  be  no  forfeiture, 
because  the  lessee  had,  in  that  case,  no  lawful  estate  but  for  one  year;(o) 
so,  where  it  was  only  an  agreement  for  a  lease,  not  amounting  to  a  present 
demise,  and  there  was  a  clause  for  procuring  the  license  of  the  lord,  held, 
that  this  was  no  forfeiture  ;(p)  so,  where  a  copyholder  demised  for  one  year, 
and  after  from  year  to  year  for  thirteen  years  more,  "  if  the  lord  would  license 
the  same,  and  so  as  the  same  should  not  be  *liable  to  forfeiture,"  p#^q,-| 
adjudged,  that  it  was  not  a  lease  for  fourteen  years,  and  an  eject-  L  -^ 
ment  would  lie  after  the  expiration  of  the  first  year;[fj)  see  also  Luff- 
kin  V.  Nunn,(r)  where  it  was  held,  that  if  the  tenant  be  evicted  by 
such  ejectment,  no  action  can  be  maintained  on  the  covenant  for  quiet 
enjoyment  ;(s)  so,  on  a  demise  of  freehold  and  copyhold  lands  at  one  entire 

(i)  Lenthall  v.  Thomas,  2  Kcb.  267.  (it)  1  Cro.  El.  143. 

(0  Matthews  v.  Whetton,  Cro.  Car.  233 ;  S.  C.  worn.  Mathewes  v.  Wheston,  W.  Jo,  249  ; 
S.  C.  nom.  Mathewes  v.  Wheaton,  1  Roll.  Abr.  508. 

(rn)  Lady  Montague's  case,  Cro.  Jac.  301  ;  S.  C,  1  Bulstr.  190. 

(n)  Lutterel  v.  Weston,  Cro.  Jac.  308  ;  S.  C,  1  Bulstr.  215  ;  S.  C,  1  Roll.  Abr.  507. 

(o)  Lady  Montague's  case,  sup. ;  see  also  1  Roll.  Abr.  848 ;  3  Bulstr.  259 ;  Bac.  Abr., 
tit.  Leases  and  Terms  for  Years,  (I.  6.)  ( p)  Coore  v,  Clare,  T.  R.  739. 

iq)  Nunn  V.  Luff  kin,  4  East,  221 ;  S.  C,  1  Smith,  90,  (r)  1  N.  R.  163. 

(s)  LufFkin  v.  Nunn,  1  N.  R.  1 63. 


464  CRAB  BS    LAW     OF     REAL     PROPERTY. 

rent,  habendum  as  to  the  copyhold  for  three  years,  warranted  by  the  cus- 
tom, with  a  covenant  for  renewal  of  the  copyhold  every  three  years,  and 
that  in  the  meantime  and  until  such  new  lease  should  be  executed,  the 
lessee  should  hold  the  land,  copyhold  as  well  as  freehold,  according  to  the 
terms  of  the  lease,  adjudged  to  be  a  lease  for  three  years  on\y,{t)  and  it  was 
there  said,  "Lady  Montague's  case(w)  is  in  point,  and  the  defendant's 
remedy  lies  on  the  covenant,  for  the  Court  cannot,  by  construction,  in  order 
to  avoid  circuity  of  action,  make  words  which  import  only  a  covenant  a 
lease  inconsistent  with  the  nature  of  the  estate.'' (y) 

877.  Waste  is  either  voluntary  or  permissive.  Voluntary  waste  is  a  for- 
feiture by  the  common  law,  see  post,  under  Title  to  Thlngs  Real  ;  but 
negligent  waste  is  said  not  to  be  so  without  a  custom  ;(.r)  the  authorities, 
however,  are  the  other  way,  for  my  Lord  Coke  says,  if  there  be  no  custom 
to  the  contrary,  waste,  either  permissive  or  voluntary,  of  a  copyholder  is  a 
forfeiture  of  his  copyhold. (;»/)  If  a  copyholder  cuts  down  trees  for  repairs, 
and  does  not  repair,  it  is  a  forfeiture ;(;?)  so,  if  he  employ  them  for  repair  of 

-^  *other  tenements,  it  will  be  a  forfeiture  ;(«)  so,  if  he  does  anything 
L  "J  to  change  the  nature  of  the  estate, (^)  as  to  pull  down  house  newly 
built  upon  the  copyhold, (i)  or  build  a  new  house,  {sed  quaere,  see  infra, 
§  878,)  or  turn  arable  land  into  a  hop  ground,  sed  rjuxre,  see  infra,  §  878  ; 
so,  if  he  opens  a  new  stone  quarr}',  it  is  a  forfeiture, (c)  (see  ante,  §  853,  as 
to  the  copyholder's  interest  in  minerals  ;)  so,  if  he  grubs  up  hedges  and 
destroys  boundaries  ;(c)  so,  if  he  tops  timber  trees  and  makes  them 
pollards. (J) 

878.  If  a  copyholder  cuts  down  timber  for  repairs,  it  is  not  waste,  for  he 
may  do  so  without  a  special  custom  ;(e)  so,  though  he  cuts  down  more  than 
he  wants  for  immediate  use,  provided  he  keeps  the  residue  for  future  use, 
for  he  may  not  know  precisely  how  much  is  necessary  ;(e)  and  so  adjudged, 
although  the  timber  was  not  employed  for  five  years,  nor  until  after  an 
entry  for  a  forfeiture  ;(e)  and  it  is  a  question  for  the  jury  to  decide  whether 
the  trees  were  cut  bond  fide  for  repair,  and  were  in  a  course  of  application 
for  that  purpose. (y) 

So,  where  a  copyholder  may  take  trees  for  reparation,  the  loppings  and 
tops  belong  to  him,  and  he  may  sell  them  to  help  to  defray  the  charges  ;(£•) 
see  ante,  as  to  the  copyholder's  interest  in  trees,  §  848  et  seq. 

Whether  turning  ploughed  lands  to  hop  ground,  or  to  a  piscary,  is  waste, 
is  not  settled,  but  the  better  opinion  is,  that  as  a  rule,  whatever  change  will 
better  the  land,  it  will  not  be  a  forfeiture  ;(/i)  so,  as  to  the  copyholder  build- 

(/)  Fenny  v.  Child,  2  M.  &.  S.  Soo. 

(«)  Cro.  Jac.  301 ;  S.  C,  1  Bulstr.  190.  {v)  Per  Dampicr,  J.,  Fenney  v.  Child,  sup. 

(JT)  Noy,  51. 

(»/)  1  Inst.  G3,  a.;  see  also  East  v.  Hardinjr,  Moor,  392  ;  0\v.  17  ;  1  Roll.  Abr.  508,  pi. 
16  ;  Estcourt  and  Weeks,  1  Lutw.  799  ;  1  Freem.  516;  1  Salk.  186. 
{z)  East  V.  Harding,  1  Cro.  El,  498;  S.C,  Moor,  392. 

(a)  Nash  V.  Derby,  (.Earl)  2  Vern.  537.  (/-)  1  Bulst.  51, 

(c)  1  Roll.  Abr.  508.  {d)  Peachy  v.  Somerset,  (Duke)  1  Sir.  447. 

(e)  East  V.  Harding,  2  Cro.  El.  498 ;  S.  C,  Moor,  392. 

(  f )  Foley  V.  Wilson,  1 1  East,  56.  {g)  3  Bulst.  281. 

(h)  Paston  V.  Mann,  Hetl.  8 ;  S.  C,  Litt.  Rep.  267,  268. 


COMMON    COPYHOLDS.  465 

ing  a  new  house  upon  tlie  copyhold,  it  is  said  by  some  to  be  a  forfeiture, 
because  it  alters  the  nature  of  the  thing  ;(/i)  but,  *by  others,  not  a  p^^ooT 
forfeiture,  because  it  is  for  the  melioration  of  the  land  ;(i)  but  then  the  L  „  -;; 
house  must  be  subject  to  all  the  customs  of  copyhold  land,  and  if  the  copy- 
holder pull  it  down  again,  it  is  waste  and  a  forfeiture  ;(z)  so,  if  a  copyholder 
digs  a  marl  pit,  and  marls  his  land,  it  is  not  a  forfeiture,  because  it  betters 
the  land,  although  at  common  law  it  is  said  to  be  a  forfeiture  ;(A:)  so,  it  is  no 
forfeiture,  if  a  copyholder  of  inheritance,  who  by  custom  may  cut  timber, 
does  waste. (A 

879.  Inclosing  copyhold  lands  one  from  another  is  a  forfeiture,  so  also 
destroying  land-marks, (m)  for  by  these  means  the  evidence  of  their  being 
copyhold  will  be  destroyed  ;(n\  and  where  a  copyholder  inclosed  leaving 
certain  gaps  at  certain  distances,  held,  that  notwithstanding  the  gaps,  this 
was  an  inclosure  against  the  custom  ;(o)  but  where  an  inclosure  has  been 
made  for  twelve  or  thirteen  years,  and  seen  by  the  steward  (the  same  lord 
and  steward  continuing  all  the  time)  without  any  objection  being  made,  it 
may  be  presumed  by  the  jury  to  have  been  made  by  license  of  the  lord,  and 
ejectment  cannot  be  brought  against  the  tenant  as  a  trespasser,  without  pre- 
vious notice  to  throw  it  up  being  given  to  him.(/)) 

880.  If  a  copyholder  refuses  his  rent  or  services,  it  is  a  forfeiture  ;(</)  but 
non-payment  of  rent  at  the  day  is  no  forfeiture,  without  a  refusal  to  pay  ;(r) 
therefore,  the  lord  must  come  upon  the  land  and  demand  the  rent,  and  if 
the  tenant,  being  present,  refuse  to  pay,  it  is  a  forfeiture  ;(s)  or  if  he  r-^^poA-x 
*say  nothing,  it  is  still  a  forfeiture  ;(/)  and  my  Lord  Coke  says,  L  -' 
that  if  he  excuses  himself  for  the  want  of  money,  and  entreats  the  lord  to 
forbear,  this  is  a  forfeiture  ;(m)  and  if  he  assigns  a  day  certain,  within  the 
manor,  for  the  payment,  and  he  does  not  pay,  this  is  a  forfeiture,  for  it 
amounts  to  an  absolute  refusal  ;(x)  so,  the  non-payment  of  a  reasonable  fine 
upon  demand  is  a  forfeiture  ;(i/)  sed  secus,  if  it  be  unreasonable,  or  if  it  is 
doubtful  whether  it  be  reasonable,  or  whether  it  be  due  or  not,  or  whether 
there  have  been  an  express  refusal,  or  if  there  was,  whether  the  fine  have 
been  paid  within  a  limited  time  ;(z)  but  it  lies  on  the  copyholder  to  show 
that  it  is  unreasonable. (a) 

881.  So,  if  a  copyholder,  being  duly  summoned,  refuses  to  appear  at  the 
court  of  the  lord,  it  is  a  forfeiture. (6) 

(h)  Paston  v.  Mann,  Hetl.  8;  S.  C,  Litt.  Rep.  967,  268. 

(i)  1  Roll.  Abr.  50;  2  Roll.  Abr.  815. 

(k)  Hetl.  6,  citing  41  Ed.  8,  Waste,  821 ;  22  H.  6. 

(/)  Rocking  v.  Hug-gens,  Cro.  Car.  221. 

(//i)  Paston  V.  Mann,  Hetl.  8;  S.  C,  Litt.  Rep.  267,  268. 

(n)  lb. ;  see  also  Peachy  v.  Somerset  (Duke,)  Prec.  Chan.  571 ;  S.  C,  1  Str.  449. 

(o)  Paston  V.  Mann,  sup.  ( p)  Foley  v.  Wilson,  1 1  East,  56. 

iq)  Dv.  211  b,  in  marg. ;  1  Roll.  Abr.  506.  (r)  Moor,  622  ;  Litt.  Rep.  268. 

(s)  Co.  Cop.  s.  162.  (0  Crisp  v.  Fryer,  2  Cro.  El.  505. 

(u)  Co.  Cop.  s.  163.  (r)  Latch,  122. 

(y)  1  Roll.  Abr.  507. 

(«)  Co.  Ent.  64;  Barnes  v.  Corke,  3  Lev.  309. 

(a)  Denny  v.  Lenman,  Hob.  135. 

(i)  Taverner  and  Cromwell's  case,  3  Leon.  108  ;  1  Roll.  Abr.  506  ;  3  Bulst.  80,  268. 


466  crabb's  law  of  real  property. 

■  By  the  opinions  of  some,  a  general  warrant  within  the  parish  was  deemed 
sufficient,  but  the  belter  opinion  is,  that  there  must  be  a  particular  summons 
made  to  the  person,  to  make  a  forfeiture  ;(c)  so,  if  he.  come  not  to  be  admit- 
ted on  due  proclamation  and  pay  his  fine  ;(f/)  so,  if  a  copyholder  refuses  to 
be  sworn  upon  the  homage  in  a  court-baron,(e)  or  when  sworn  refuses  to 
present  according  to  his  oath  ;(e)  so,  if  a  copyholder  forges  a  customary,(y) 
provided  he  makes  use  of  it ;(_/)  so,  if  he  disclaims  being  tenant  to  the 
lord  ;(^)  sed  seciis,  if  he  comes  into  court  and  renounces  his  copy.(/j) 

But  weakness  or  a  great  office  may  be  an  excuse  for  his  not  coming  ;({) 
r*fift'^"l  ^°'  ^^  ^^  ^^  "^  ^^^  afraid  to  be  arrested  ;(i)  *so,  the  refusal  must 

L  -'be  wilful  and  absolute,  therefore,  if  the  lord  come  to  the  copyholder 
and  require  him  to  do  his  services,  and  the  cop3'holder  answer,  if  they  are 
due,  he  will  do  them,  but  it  shall  be  tried  at  law  first  whether  they  are  due, 
this  is  no  forfeiture,  being  no  wilful  refusal ;(yt)  so,  if  the  copyholder  says, 
"  If  it  be  a  court,  I  appear;  if  not,  I  do  not  appear  ;"  this  is  no  refusal  or 
forfeiture  ;^A  but  if  there  be  no  controversy  about  the  legality  of  the  court, 
and  this  is  only  used  as  a  shift,  then  it  seems  to  be  a  forfeiture,  (m) 

2.  TFho  subject  to  Forfeiture, 

882.  A  forfeiture  can  only  arise  by  the  act  of  the  tenant ;  if,  therefore,  a 
disseissor  commit  waste,  it  is  no  forfeiture  ;(«)  so,  if  a  surrenderee  commits 
felony  before  admittance  ;(o)  so,  in  the  case  of  a  cestui  que  trust ;(^p^  so,  if 
a  guardian  commit  waste,  it  shall  be  no  forfeiture  of  the  copyhold,  but  he 
shall  lose  his  wardship  ;(//)  so,  if  a  stranger  commit  waste,  the  copyholder 
shall  not  forfeit  his  land,  for  things  in  law,  as  forfeitures,  conditions,  and  the 
like,  are  to  be  taken  strictly  ;(?•)  so,  if  there  be  tenant  for  life,  remainder  for 
fee  of  a  copyhold,  and  the  tenant  for  life  commits  a  forfeiture,  this  shall  not 
bind  the  remainder-man  ;(s)  but,  although  this  shall  not  affect  the  remainder- 
man, yet  he  shall  not  enter,  but  the  lord  shall  hold  it  during  the  life  of  the 
person  committing  the  forfeiture ;(/)  so,  if  a  lessee,  a  copyholder  tenant  in 
tail,  commit  a  forfeiture,  his  issue  is  bound  by  it ;(«)  so,  the  forfeiture  of  one 
joint-tenant  will  not  affect  the  part  of  the  other  ;(u)  so,  if  a  lessee  by  license 
Pii^PQPi  mfike  a  feoffinent,  *or  cut  down  timber,  or  do  any  act  which  Avould 
L  J  be  a  forfeiture  if  done  by  the  copyholder,  this  will  forfeit  only  the 
estate  of  the  lessee,  and  not  the  estate  of  the  copyholder.(x) 

883.  As  a  rule,  neither  a  feme  covert  of  herself  without  the  assent  of  her 

(c)  Fryer  v.  Crisp,  2  Cro.  El.  505  ;  S.  C,  Noy,  68. 

(rf)  Gill).  Ten.  230  ;  1  Watk.  Cop.  31 5.  319.  (e)  Moor,  350  ;  Kitch.  180. 

(  f)  Tnverner  and  Cromwell's  case,  3  Leon.  108.  (s)  Kitch.  248. 

(h)  1  Roll.  Abr.  107.  (i)  Co.  Cop.  159. 

{k)  Barnliam  and  Hisrgenp,  Latcli,  14  ;  S.  C.  nom.  Vernon  v.  Huggens,  Id.  133  ;  see  also 
1  Roll.  Rop.  429  ;  3  Bnlstr.  80.  268. 

(/)  Parker  v.  Cook,  Sty.  241.  (in)  lb. ;  see  also  Bac.  Abr.  Copyhold,  (L.  1.) 

(n)  Co.  Cop.,  s.  59,  tr.  138.  (o)  Jeftereys  v.  Hicks,  2  Wil>5.  13. 

(  p)  Co.  Cop.,  s.  59,  tr.  137  ;  Peachy  v.  Somerset  (Duke),  1  Str.  441  ;  S.  C,  Prec.  Chan. 
573  ;  Cary,  14,  15.  (q)  Co.  Cop.,  s.  59,  tr.  137. 

(r)  4  Leon.  241. 

(s)  Rastal  v.  Turner,  2  Cro.  El.  598 ;  S.  P.,  Baspole  v.  Long,  Noy,  42. 

(t)  Podoer's  case,  9  Co.  107.  (.u)  Co.  Cop.,  s.  59,  tr."  138. 

(x)  Kitch.  246. 


COMMON     COPYHOLDS.  467 

husband,  nor  an  infant  under  the  age  of  fourteen,  (being  till  then  in  ward,) 
nor  any  person  7ion  sanse  meraorite,  nor  any  idiot  or  lunatic,  can  forfeit  a 
copyhold.  By  the  11  G.  4  &  1  W.  4,  c.  65,  s.  9,  it  is  provided,  that  no 
forfeiture  shall  be  incurred  by  infants, /e?nes  covert,  or  lunatics,  for  refusing 
to  be  admitted,  or  to  pay  the  lord's  fine  ;  and  under  the  9  G.  I,  c.  29,  which 
is  repealed  by  the  11  G.  4,  it  was  held  that  if  one  of  several  co-heirs  of  a 
copyholder  were  a  feme  covert  at  the  time  of  the  ancestor's  death,  and  the 
lord  seized  the  whole  estate  without  first  appointing  an  attorney,  it  was  irre- 
gular and  void.(?/) 

To  the  above  general  rule  there  are  several  exceptions.  If  difeme  covert 
be  attainted  of  treason  or  felony,  with  the  consent  of  the  husband,  her  copy- 
hold will  be  forfeited  ;(z)  so,  if  she  commits  waste  with  the  hke  consent,  it 
will  be  a  forfeiture  ;(a)  but  a  lease  by  the  husband  for  more  years  than  is 
warranted  by  the  custom  will  be  a  forfeiture  only  for  the  life  of  the  hus- 
band ;(6)  but  denying  to  pay  the  rent  or  to  do  suit  at  court  are  present  for- 
feitures, which  shall  bind  the  wife  ;(6)  so,  doing  waste  by  the  husband  is  a 
forfeiture,  which  shall  bind  the  wife. (6) 

884.  An  infant  above  the  age  of  fourteen  committing  treason,  felony,  or 
voluntary  waste,  or  other  act  to  the  disherison  of  the  lord,  or  wilfully  refus- 
ing his  services,  shall  forfeit  his  copyhold  ;(c)  but  for  permissive  waste,  or 
replevying  against  the  lord,  or  for  leasing  contrary  to  the  custom,  ^„-.^-, 
*or  the  like,  he  shall  not  be  liable  to  forfeiture  ;(rf)  but  if  the  infant  ^  -■ 
accepts  rent  after  full  age,  and  so  confirms  a  lease,  the  forfeiture  will  bind 
him  ;(c/)  but  it  appears  very  doubtful  whether  the  lord  would  be  justified  in 
entering  as  for  a  forfeiture  in  such  a  case.(?) 

3.  Who  may  take  Advantage  of  a  Forfeiture. 

885.  A  forfeiture  can  only  be  taken  advantage  of  by  him  who  is  lord  at 
the  time  of  the  forfeiture  ;  except  in  those  cases  where  the  act  of  forfeiture 
destroys  the  estate,  as  by  fine  or  feoffment ;(_/")  but  a  distinction  has  been 
taken  between  things  which  are  forfeitures  at  the  election  of  the  lord,  as 
leasing  without  license,  waste,  and  the  like,  of  which  the  lord  only  can  take 
advantage,  and  those  which  go  to  the  disherison  of  the  lord  by  destroying 
his  estate,  as  by  feoffment,  and  formerly  a  fine  \{f)  therefore,  if  a  copy- 
holder commit  a  forfeiture,  and  the  lord  die  before  entn,'  or  seizure  for  the 
forfeiture,  he  in  reversion  or  remainder  shall  not  take  advantage  of  the  for- 
feiture committed  before  his  time  ;(g-)  but  if  the  copyholder  of  a  manor 
belonging  to  a  bishopric  during  a  vacanc)'  commit  a  forfeiture  by  cutting 
timber,  the  succeeding  bishop  may  take  advantage  of  it  ;(A)  but  see  further 
as  to  seizure,  quousque,  post,  §  902 ;  so,  a  lessee  for  years  of  a  manor  shall 

iy)  Tarrant  v.  Hcllier,  3  T.  R.  162. 

(2)  4  Bl.,  c.  29  ;  2  Walk.  Cop.  338;  citing  1  H.  P.  C.  c.  1,  s.  11. 

(a)  Co.  Cop.,  s.  5y,  tr.  137.  (J,)  Hedd  v.  Chalener,  1  Bro.  El.  149. 

(c)  8  Co.  44  ;  1  Walk.  Cop.  337,  333. 

(a)  Co.  Cop.,  s.  59,  tr.  137  ;  Ashfield  v.  Ashfield,  Nov,  92  ;  S.  C,  W.  Jo.  157  ;  S.  C, 
Godb.  3G4;  S.  C,  Latch,  199. 

{e)  Zouch  V.  Parsons,  3  Burr.  1794  ;  Gilb.  Ten.  293,  294. 

(/)  Tarrant  v.  Hdlicr,  3  T.  R.  162. 

(e-)  Lady  Montague's  case,  Cro.  Jac.  301 ;  S.  C,  1  Bulst.  190;  see  also  1  Mod.  200  ;  1 
WatL  Cop.  343,  (A)  Read  v.  Allen,  cited  Bull.  N.  P.  108. 


468  crabb's  law    of    real   property. 

take  advantage  of  a  forfeiture  committed  by  a  copyholder,  for  he  is  dominus 
pro  tempore  ;{i\  so,  if  the  lord  grant  to  a  stranger  the  freehold  of  a  copy- 
hold in  fee,  though  by  this  the  tenement  is  divided  from  the  manor,  and  not 
demisable  by  copy  again,  yet  the  grantee  of  the  freehold  shall  take  advan- 
r*fi«s~i  ^^^^  °^^  forfeiture  committed  afterwards  by  the  copyholder,  *for  he 
L  -'  ought  to  pay  his  rent  to  the  grantee  ;(^)  so,  if  the  grantee  make  a 
lease  for  years  of  the  freehold,  the  lessee  shall  take  advantage  of  a  forfeiture 
committed  afterwards  ;(/)  but  not  of  a  forfeiture  committed  before  the  grant, 
for  the  grant  of  the  freehold  made  by  the  lord  before  entry  implies  an  assent 
that  the  copyholder  shall  continue  his  estate,  and  so  is  in  nature  of  a  con- 
firmation.(m) 

886.  Even  in  the  case  of  forfeiture  for  treason,  the  forfeiture  accrues  to 
the  lord,  and  not  to  the  queen,  except  by  the  express  words  of  an  Act  of 
Parliament  ;(n)  but  where  a  copyholder  commits  treason,  and  the  lord  aliens 
the  manor,  and  afterwards  the  copyholder  is  attainted  by  Act  of  Parliament, 
it  is  not  settled  whether  the  alienee  shall  take  advantage  of  the  forfeiture. (n) 

In  one  case  where  a  copyhold  manor  descended  on  two  coparceners,  and 
copyholder  committed  waste,  or  made  a  lease,  which  were  forfeitures,  and 
after  one  of  the  sisters  died,  held,  that  the  surviving  coparcener  should  not 
take  advantage  of  the  forfeiture,  for  the  election  to  take  advantage  of  the 
forfeiture  must  be  made  by  them  both,  which  could  not  be  after  the  death  of 
one  of  them. (o) 

4.  Extent  of  the  Forfeiture. 

887.  Where  a  copyhold  is  holden  by  one  tenure,  it  is  said  that  forfeiture 
of  a  part  is  a  forfeiture  of  the  whole  ;(;9)  sed  seciis,  if  a  copyholder  be  seis- 
ed of  several  copies,  as  Blackacre  by  the  rent  of  3(/.,  and  of  Whiteacre  by 
the  rent  of  4d.,  and  of  Greenacre  by  the  rent  of  6f/.,  and  one  of  the  acres  is 

^  *forfeited,  this  shall  be  no  forfeiture  of  the  other  ;(</)  so,  if  the  copy- 

L  J  holder  holding  three  several  acres,  surrender  to  the  use  of  A.,  tenend'' 
per  antiqua  servitla  inde  prius  debita  ef  de  jure  con.nfef a,  and  A.  afterwards 
commits  waste  in  one  acre,  that  acre  only  shall  be  forfeited  ;(r)  so,  if  several 
copyholds  escheat  to  the  lord,  and  he  commits  a  forfeiture  in  part  of  one, 
that  one  only  shall  be  forfeited  ;(.s)  for  the  several  /labenditms  and  tenen- 
dums  make  them  several  in  themselves,  although  they  be  all  by  one  copy  :(5) 
so,  where  there  are  joint-tenants  copyholders,  and  one  commits  a  forfeiture, 
it  shall  extend  to  his  part  only,  see  ante,  §  882.  As  to  dispensing  with  a 
forfeiture,  and  how  a  forfeiture  is  to  be  taken  advantage  of,  see  infra,  §§  888, 
889  et  seq.  ^ 

(t)  1  Roll.  Abr.  509  ;  2  Saund.  423. 

(k)  East  V.  Harding,  2  Cro.  El.  499  ;  S.  C,  Moor,  392;  see  also  Ow.  63  ;  1  Lutw.  802 ; 
Gilb.  Ten.  209.  244. 

(l)  lb. ;  see  also  1  Roll.  Abr.  .510.  (m)  Ow.  63 ;  see  also  Latch,  227 ;  Palm.  416. 

In)  2  Vent.  39;  see  also  Hard.  434. 

(o)  Eastcourt  v.  Weeks,  1  Salk.  186;  S.  C,  Anon.,  1  Freem.516. 

(/>)  Traverner  and  Cromwell,  4  Co.  27. 

Iq)  Traverner  and  Cromwell,  4  Co.  27 ;  see  also  1  Roll.  Abr.  509. 

(r)  Traverner  and  Cromwell,  4  Co.  28. 

(s)  lb. ;  see  also  S.  C,  1  Cro.  El.  353 ;  S.  C,  3  Leon.  109 ;  see  2  Ld.  Raym.  1000 ; 
GUb.  Ten.  246. 


COMMON    COPYHOLDS. 


5.  Dispensing  with  a  Forfeiture. 


469 


888.  Forfeitures  being  deemed  odious  in  tlie  law,  the  Courts  have 
always  inclined  to  construe  every  act  of  the  lord  as  indicating  an  intention 
of  dispensing  with  or  waiving  the  forfeiture  ;  therefore,  if  the  tenant  appear 
not  in  court,"and  the  lord,  after  personal  warnings  amerce  him,  this  is  a  dis- 
pensation of  the  forfeiture  ;(<)  so,  although  it  is  not  estreated  or  levied  ;(m) 
so,  the  acceptance  of  rent  after  a  lease  made  is  a  dispensation  •,{x)  so,  the 
accepting  of  any  services  ;(?/)  so,  the  re-admission  of  the  copyholder  who 
has  committed  the  forfeiture  ;(z)  so,  by  the  admittance  of  the  heir  ;(«)  and 
so,  even  by  the  presentment  of  the  death  of  the  party  committing  the  for- 
feiture, Tarrant  v.  Hellier,(i)  where  it  is  said,  "Not  only  *admis-  pggQ-, 
sion  of  the  copyholder  or  his  heir,  but  any  recognition  on  the  part  L 

of  the  lord,  would  preclude  him  from  taking  advantage  of  a  forfeiture  ;"(c) 
so,  if  copyholder  lets  by  indenture,  which  is  forfeiture,  and  after  surrenders 
to  the  use  of  J.  S.,  and  he  is  admitted,  the  lord  after  shall  not  take  advantage 
of  the  forfeiture  ;{d)  and  in  Penn  v.  Merivall,(e)  it  was  held  that  a  grant  of 
the  freehold  before  entry  for  a  forfeiture  by  leasing  without  license  was  an 
affirmance  of  the  lease. 

So,  if  the  lord  do  not  enter  for  a  forfeiture  by  reason  of  waste,  and  the 
tenant  repairs,  held,  that  the  forfeiture  was  purged  ;(/)  so,  although  trees 
that  were  cut  down  for  repairs  were  not  used  until  five  years  after ;(/)  so, 
it  is  said,  that  if  a  copyholder  who  comes  to  his  estate  tortiously  commit  a 
forfeiture,  and  then  he  that  hath  right  release  to  him,  that  is  a  dispensation  of 
the  forfeiture,  seel  qusere.^g) 

889.  So,  an  act  by  a  lord  pro  tempore,  which  amounts  to  a  dispensation, 
will  bind  those  entitled  to  the  manor  in  remainder  or  reversion,  but  not  so 
•as  to  give  effect  to  a  grant  of  a  common  law  interest  ;(/t)  but  a  lord  by 
wrong,  as  by  disseisin,  cannot  do  any  act  of  dispensation  to  bind  the  rightful 
lord. (A) 

890.  So,  the  forfeiture  must  be  known  to  the  lord,  otherwise  any  act  by 
him  amounting  to  a  dispensation  will  not  be  deemed  as  such,  Co.  Cop.,  s. 
61,  tr.  140;  but  see  Mantle  v.  Wollington,(i)  where  this  matter  was  left 

(0  1  Brownl.  149. 

(u)  Braunche's  case,  1  Leon.  104  ;  see  also  Freem.  517. 

{x)  1  Keb.  15.  ,       ,  „  , 

(»/)  Co.  Cop.  s.  61,  tr.  140  ;  Bacon  v.  Thurley,  Toth.  107  ;  Hamlen  v.  Hamlen,  1  Bulstr. 
189  ;  Eastcourt  v.  Weeks,  1  Salk.  186  ;  Froem.  517  ;  Garrard  v.  Lister,  1  Keb.  15. 

(z)  Clerk  v.  Wentworth,  Totli.  107;  Milfax  v.  Baker,  1  Lev.  26;  S.  C.  nom.  Munifax 
V.  Baker,  1  Keb.  26;  S.  C.  Winch,  67  ;  Pajje  v.  Smitii,  Holt,  101. 

(a)  Clerk  v.  Wentworth,  sup. ;  but  see  Smith  v. ,  cited  Toth,  107. 

(ft)  3  T.  R.  171. 

(c)  Per  Lord  Kenyon,  C.  J.,  Tarrant  v.  Hellicr,  3  T,  R.  171.  {<!)  Kilch.  177. 

(e)  Ow.  63.  (/)  2  Sid.  8. 

(0-)  Gilb.  'J'cn.  248 ;  1  Watk.  Cop.  337. 

(h)  Millax  V.  Baker,  1  Lev.  26  ;  S.  C.,nom.  Munifax  v.  Baker,  1  Keb.  26;  S.C.,  Winch, 
67;  see  also  Holt,  161 ;  3  Salk.  100. 

(i)  Cro.  Jac.  166;  S.  C.  nom.  Mantell  v.  Wcekington,  1  Roll.  Abr.  475. 


470        crabb's  law  of  real  froperty. 

unsettled  ;  and  Wheeler's  case,(A:)  where  a  widow  entitled  to  free  bench 
during  chaste  viduity  was  admitted  bj'  the  lord  after  incontinency,  but  of 
*A  111  ^vhich  he  had  notice,  and  the  lord  was  held  to  *be  bound  by  the  ad- 
L  J  mittance,  see  also  2  Danv.  207  ;  C4ilb.  Ten.  247  ;  and  the  lord  will 
be  presumed  to  have  notice  of  non-attendance  at  court,  non-payment  of  rent, 
and  the  like  ;(/)  so,  although  a  lease  contrary  to  the  custom  and^without 
license,  and  all  such  other  acts  as  do  not  tend  to  the  destruction  of  the  copy- 
hold interest,  such  as  waste,  subtraction  of  suit  and  services,  may  be  dis- 
pensed with,  even  by  a  lord  pro  tempore  ;[m)  but  where  the  act  tends  to  the 
absolute  annihilation  of  the  copyhold,  as  a  feofflnent  with  livery  or  an  attain- 
der, the  copyhold  interest  is  gone,  and  cannot  be  affirmed,  it  can  only  be  re- 
vived by  a  new  grant. (n) 

6.  How  Forfeiture  may  be  taken  Mvanfage  of. 

891.  In  order  to  remove  the  estate  out  of  the  copyholder  and  vest  it  in 
the  lord,  the  lands  forfeited  must  be  seized  by  the  lord  or  his  steward,  either 
by  the  entry  of  himself  or  his  steward, (o)  so,  as  he  makes  the  entry  within 
twenty  years  after  the  commission  of  the  forfeiture  ;(/j)  or  by  the  exercise 
of  some  act  of  ownership  tantamount  to  such  seizure,  as  the  granting  them 
to  another  for  years,  or  the  like.(|7) 

892.  Seisure  by  entry  may  be  either  immediately  upon  the  commission 
of  the  act  of  forfeiture,  or  it  may  be  made  after  presentment  "by  the  homage. 
When  the  act  of  forfeiture  is  of  a  public  nature,  as  attainder  for  treason  or 
felony,  which  is  notorious  from  the  publicity  of  conviction  and  the  attainder 
on  record,  or  refusing  in  open  court  to  do  suit  or  service,  &c.,  or  other 
matter  which  must  necessarily  be  within  the  lord's  knowledge,  and  is  not 
r*fiQ9T  °^  ^  dubious  *character,  so  as  to  admit  of  a  double  construction,  no 
L  -'  presentment  will  be  necessary,  because  the  reason  of  the  present- 
ment is  to  give  the  lord  notice  of  the  forfeiture. (?•) 

893.  But  where  the  act  of  forfeiture  is  of  such  a  nature  that  the  lord 
cannot  be  supposed  to  have  knowledge  of  it  without  express  notice  being 
given  Iiim,  or  if  it  be  of  such  a  nature  that  either  the  fact  of  commission  or 
the  actual  nature  of  the  offence  becjueslionabie,  the  lord  cannot,  as  it  should 
seem,  make  a  seizure  until  presentment  of  the  cause  of  forfeiture  be  made 
by  the  homage ;(«)  so,  says  my  Lord  Coke,  "The  offences  and  causes  of 
forfeiture  of  which  by  common  presumption  the  lord  cannot  of  himself  have 
notice,  are  felony  or  treason,  outlawry  or  excommunication,  going  about  in 
any  other  court  to  entitle  any  other  lord  to  the  copyhold,  and  alienation  by 

(k)  4  Leon.  240.      *  (?)  Lord  Cornwallis's  case,  2  Vent  39, 

(m)  Co.  Cop.,  s.  61,  tr.  140. 

(ra)  lb.;  sec  also  Bcnnison  v.  Strode,  T.  Jo.  189  ;  S.  C,  2  Sliow.  1.52;  1  Watk.  Cop. 
351.  (o)  Bjnson  and  Strode,  2  Show.  152. 

(/))  Tarrant  v.  Hillier,  3  T.  R.  172. 

(o)  Mildix  V.  Baker,  1  Lev.  26. 

(r)  Co.  Cop.,  s.  58,  tr.  135  ;  Jowry  and  Pawly,  2  Keb.  451 ;  Benson  v.  Strode,  T.  Jo. 
190 ;  S.  C,  2  Sliow.  152 ;  see  also  JEast  v.  Harding,  1  Cro.  El.  499 ;  Milfax  v.  Baker,  1 
Lev.  2G ;  Gilb.  Ten.  247 ;  1  Watk.  Cop.  346. 

(s)  Cornwallis's  case,  2  Vent.  39. 


COMMON    COPYHOLDS. 


471 


bargain  and  sale  enrolled,  or  by  feoffment  with  livery,  and  these  and  the 
like'' ought  to  be  presented  ;{t)  but  this  point  is  not  settled.  It  is  said  by  a 
writer  of  authority,  "  The  reason  given  by  Coke  is  of  no  cogency,  that 
because  the  lord  cannot  by  intendment  have  notice  of  them  himself,  there- 
fore he  shall  take  no  advantage  of  them  Avithout  presentment ;  for  if  he  can 
take  notice  of  them,  why  should  he  not,  since  presentment  is  not  that  which 
gives  title,  but  only  lets  him  know  what  he  hath  title  to.  But,  however,  it 
is  safe  to  get  such  things  presented,  and  if  there  be  a  custom  for  it,  it  must  be 
pursued  ^'(w)  see  also  1  Watk.  Cop.  346,  and  flie  authorities  above  cited,  (ante, 
§  892,)  where  presentment  was  held  not  to  be  necessary.  However,  although 
when  a  plaintiff  makes  title  in  the  lessor  or  lord  of  a  manor,  who  has  right 
by  forfeiture  of  a  copyhold,  neither  a  presentment  of  the  forfeiture  nor  a 
seizure  *by  the  lord  need  be  proved  ;{x)  yet  it  is  essential  to  estab-  p*.g93-] 
lish  the  fact  of  forfeiture  by  the  clearest  evidence. (?/)  L 


III.  3Bnfvanc!)i.semcnt  of  Copgljollrs. 


§  894.  Definition  of  Enfranchisement.  i      898.  Effect  of  Inclosure. 

Distinction    between    Enfranchise-]      899.  Eifect  of  Enfranchisement, 
ment  and  Extinguishment. 

895.  How  effected. 

896.  By  Conveyance  of  the  Fee  simple. 

897.  By  Release. 


To  Extinj^uish  Common. 
900.  To  bar  Entails. 

When  made  to  a  Trustee. 
Liability  to  repair. 


§  894.  Another  mode  by  which  the  copyhold  interest  may  be  destroyed  or 
annihilated  is  by  enfranchisement,  which,  as  the  term  imports,  is  an  eman- 
cipation of  the  land  from  its  base  tenure,  or  converting  the  same  from  a 
copyhold  into  a  freehold  tenure.  There  is  a  clear  distinction  between 
enfranchisement  and  extinguishment,  for  enfranchisement  destroys  the 
tenure,  so  that  the  lands  become  absolutely  free,  and  extinguishment 
destroys  only  the  estate  of  the  copyholder,  which  may  be  revived  in  the  . 
same  or  another  person  by  a  new  grant. 

895.  An  enfranchisement  is  effected  by  a  common-law  conveyance  of  the 
fee  simple  of  the  particular  tenement,  by  the  lord  of  the  manor  to  the  copy- 
holder, for  it  is  by  the  union  of  the  freehold  and  copyhold  interest,  that  the 
base  or  less  worthy  tenure  becomes  lost  in  the  more  worthy  ;(z)  therefore, 
it  is  immaterial  whether  it  be  immediately  from  the  lord,  or  first  to  a 
stranger,  and  such  stranger  convey  to  the  copyholder,  for  in  either  case  it 
will  be  an  enfranchisement  on  the  union  of  the  tenures  •,{z)  so,  a  person 
who  has  been  *admitled  and  recognized  as  the  lord's  tenant,  p^gg^-i 
although  in  strictness  he  should  have  an  equitable  interest  only,  is  L 
capable  of  receiving  a  grant  of  the  freehold,  for  giving  effect  to  a  contract  of 
enfranchisement,  and  the  heir  may  accept  an  enfranchisement  before  admis- 

{t)  Co.  Cop.,  s.  58,  tr.  135.  (m)  Gilb.  Ten.  246. 

(X)  In  re  Winton,  (Bishop),  Bull.  X.  P.  107. 

lij)  Hamlen  v.  Hamlen,  1  Bulst.  190.  («)  Lane's  case,  2  Co,  16. 


472  crabb's   law  of   real   property. 

sion  ;(«)  but  it  seems  that  if  a  copyholder  be  enfeoffed  by  the  lord  to  the  use 
of  others,  the  copyhold  interest  will  still  remain  under  the  Slat,  of  Uses, 
(27  H.  8,  c.  10,  s.  3.)(^') 

896.  In  order  to  make  an  enfranchisement  absolute  and  entire,  the  fee 
simple  of  the  freehold  must  be  conveyed,  for  if  a  less  estate  than  the  fee  be 
conveyed,  the  union,  though  complete  for  the  time,  can  last  no  longer  than 
during  the  continuance  of  the  interest  conveyed,  after  which  the  land  may 
again  be  granted  to  be  holden  by  copy  ;  therefore  where  the  husband  of  a 
lady  of  the  manor  let  a  copyhold  parcel  of  the  manor  for  years  by  indenture, 
held,  that  this  did  not  destroy  the  custom  of  the  manor,  but  that  the  wife, 
after  his  death  might  demise  it  again  by  copy  ;(c)  this,  therefore,  will  ope- 
rate only  as  a  temporary  suspension  of  the  copyhold  interest,  and  not  as 
an  enfranchisement. (c)  But  a  copyholder  having  but  a  partial  interest,  as 
an  estate  for  life,  &c.,  his  taking  such  a  conveyance  of  the  fee  will  not  pre- 
vent the  enfranchisement  from  being  complete  ;  because,  although  the 
copyhold  interest  as  to  him  can  be  for  no  longer  time  than  he  has  therein, 
yet  the  grant  of  the  freehold  in  the  fee  simple  by  the  lord  renders  the  land 
for  ever  incapable  of  being  holden  of  him  by  copy,  since  his  whole  estate  is 
gone  by  the  grant  in  fee  simple,  and  such  a  conveyance  operates  as  a  total 
extinction  of  the  demisable  quality  of  the  land  ;  the  enfranchisement,  how- 
ever, in  this  case  is  not  for  the  benefit  of  the  party  himself  only,  but  of  all 

those  who  would  have  been  entitled  to  the  copyhold  *after  the  deter- 
L  J  mination  of  the  particular  estate,  and  will  not  pass  a  fee  simple  to  the 
particular  tenant,  whose  heir-at-law  will,  therefore,  be  compellable  to  execute 
a  conveyance  to  the  remainder-man,  on  his  paying  a  proportionate  part  of 
the  consideration,  if  any,  paid  for  the  enfranchisement, ((/) 

By  the  Land  Tax  Redemption  Act,  (42  G.  3,  c.  IIG,)  persons  having 
a  particular  interest  only  are  empowered  to  enfranchise  copyholds,  and  a 
conveyance  by  them  is  made  to  operate  as  a  complete  enfranchisement. 
There  is  a  like  provision  in  the  Church  Building  Act,  (58  G.  3,  c.  45  ;)  and 
by  the  10  G,  4,  c.  50,  the  Commissioners  of  Woods  and  Forests  are  empow- 
ered to  enfranchise  copyhold  land  held  of  the  Crown,  and  the  deeds  of 
enfranchisement  are  to  be  inrolled. 

897.  An  enfrancliiscment  may  likewise  be  effected  by  the  lord's  releasing 
to  the  copyholder  the  manorial  rights,  for  by  this  the  lands  are  severed  from 
the  manor,  and  the  tenure  between  the  lord  and  his  tenant  dissolved,  and  he 
must  thenceforth  hold  of  the  lord  above  by  the  same  services  as  the  releasor 
held  before. (e)  The  lands,  therefore,  being  thus  by  enfranchisement  severed 
from  the  manor,  it  follows  that  all  customs  which  attached  upon  them,  whilst 
holden  of  the  manor,  as  a  particular  mode  of  descent  or  the  like,  are  lost,  and 
ihey  acquire  all  the  properties  and  qualities  of  freehold  tenures,  and  so  also 
will  all  rights  and  privileges  annexed  to  the  copyholder's  estate,  as  rights  of 
common  or  the  like,  be  of  course  extinguished  as  soon  as  the  copyhold  to 
which  they  were  annexed  is  gone  ;  if,  therefore,  it  be  intended  that  these 

{n)  Wilson  V.  Allen,  1  Jac.  &  W.  611. 

(/))  Iscd's  case,  cited  7  Co.  33  a.  (c)  Cnncsbic  v.  Ruskey,  2Cro.  El.  459. 

(</)  Winne  v.  Cookes,  1  B.  C.  C.  515  ;  see  also  Clialloncr  v.  Murhall,  2  V^es.  jua.  524. 
(e)  Litt.,  s.  147  ;  1  Inst.  102,  b. 


COMMON    COPYHOLDS.  473 

rights  should  be  preserved,  an  express  grant  of  them  to  the  grantee  of  the 
land  must  be  inserted  in  the  deed  of  enfranchisement, (/)  see  further, 
infra,  §  899. 

*890.  When  an  allotment  is  made  to  a  copyholder,  of  waste  or  p^popi 
other  freehold  land,  under  an  Act  of  Parliament,  not  containing  an  L  -' 
express  provision  that  the  allotted  land  shall  be  held  by  the  same  tenure  as 
the  estate  in  respect  whereof  the  allotment  is  made,  no  change  of  tenure  will 
take  place  in  the  land  so  allotted  ;  therefore,  where  allotments  were  made 
and  awarded  to  a  copyholder,  in  respect  of  several  customary  estates  of 
which  he  was  seised  in  fee  according  to  the  custom  of  the  manor,  according 
to  an  aoreement  between  the  lord  of  the  manor  and  the  commoners,  which 
was  confirmed  by  an  enclosure  act,  held  that  the  allotments  so  made  were 
freehold,  not  customary  estate,  and  therefore  were  not  within  the  custom  of 
the  manor,  that  customary  estates  were  not  deviseable  by  will,  Lowes  v. 
Davidson  ;{g)  and  it  was  in  this  case  assumed  as  incontrovertible,  that  a 
copyhold  could  not  be  created  at  this  day  except  by  Act  of  Parliament,  or  by 
custom  to  warrant  the  granting  of  the  waste  as  copyhold  ;  and  as  the  act 
did  not  direct  the  allottees  to  take  their  allotments  as  copyholders,  they  took 
their  allotments  as  freehold  estates  of  inheritance,  it  not  being  competent  to 
the  parties,  by  any  agreement  among  themselves,  to  constitute  an  estate  of  a 
customary  nature  in  these  allotments. (A) 

899.  One  consequence  of  enfranchisement  is,  that  where  a  copyholder  has 
comm.on  in  the  wastes  within  the  manor  that  belongs  to  his  estate,  if  the 
estate  be  enfranchised,  the  common  is  exlinct,(i)  unless  it  be  specially  pre- 
served to  the  copyholder  in  terms  equivalent  to  a  re-grant  of  common  ;(k) 
and  the  grant  of  "  all  appurtenances"  to  the  copyhold  tenement  has  been 
keld  not  sufficient  to  preserve  the  common  ;  *but  though  this  right  is  p#f.n,^-] 
destroyed  at  law  by  enfranchisement,  it  will  subsist  in  equity  ;(/)  L  -^ 
so,  if  a  man  has  common  in  the  wastes  of  the  lord  out  of  the  manor,  he  has 
the  same  as  belonging  to  his  land ;  and  if  he  enfranchises  the  copyhold 
estate,  still  his  common  remains  ;(?/i)  so,  if  a  copyholder  has  immemorially 
enjoyed  a  right  of  way  over  another's  copyhold,  and  he  become  the  pur- 
chaser of  the  freehold  of  his  own  copyhold,  yet  the  Avay  remains,(?i)  for  as 
betvy^een  the  copyholder  and  a  stranger  it  is  the  tenure  only  that  is  altered  by 
the  enfranchisement. (o) 

( f)  Fort  and  Ward,  Moor,  G67 ;  see  also  Bradshaw  v.  Eyr,  2  Cro.  El.  570 ;  Wortledg  v. 
Kingsvvel,  Id.  794 ;  S.  C,  2  Anders.  168  ;  Marsham  v.  Hunter,  Cro.  Jac.  253  ;  S.  C,  1 
Bulst  2  ;  S.  C.  nom.  Massam  v*  Iliinter,  Yelv.  18!) ;  S  C,  nom.  Darson  v.  Hunter,  Noy, 
136  ;  S.  C.  nom.  Massam  v.  Hunt,  1  Brovvnl.  22  ;  Grymes  v.  Peacock,  1  Bulst.  18 ;  Crow- 
ther  V.  Oldficd,  1  Salk.  366. 

(a-)  2  M.  &  S.  175. 

{X)  In  re  Winton  (Bishop,')  Bull.  N.  P.  107.         (2)  Hamlen  v.  Hamlcn,  1  Bulst.  190. 

(A)  Lowes  V.  Davidson,  2  M.  &  S.  175  ;  see  also  Revell  v.  Joddrell,  2  T.  R.  415  ; 
Townley  V.  Gibson,  2  T.  R.  701. 

(t)  Crowder  v.  Oldfield,  1  Salk.  170;  S.  C.  Holt,  146  ;  S.  C,  6  Mod.  19. 

(k)  Speaker  v.  Styant,  Comi).  127.  (/)  Styant  v.  Staker,  2  Vern.  250. 

On)  lb. ;  sec  also  Hob.  86 ;  Cro.  Jac.  253  ;  Yelv.  18!)  et  seq. 

(n)  1  Roll.  Abr.  933.  (0)  Rich  v.  Parker,  Hardw.  131. 


474 


CRABBS  LAW  OF  REAL  PROPERTY. 


900.  If  a  copyhold  estate  be  enfranchised  by  a  tenant  in  tail,  the  issue  in 
tail  will  be  barred. (/>) 

The  conveyance  by  way  of  enfranchisement  should  always  be  taken  in 
the  name  of  the  copyholder,  and  not  in  the  name  of  a  trustee,  for  in  this 
latter  case  the  copyhold  interest  would  still  remain,  so  that  the  wife  of  the 
copyholder,  if  dowable  by  the  custom,  would  still  remain  so,(<jr)  and  the  heir 
is  entitled  to  recover  in  ejectment  against  the  purchaser  of  the  freehold 
interest. (r) 

Enfranchisement  only  alters  the  manner  of  the  tenure  ;  therefore,  where 
the  lord  is  bound  to  repair  a  way  ratione  tenurae,  the  ancient  freehold  and 
copyhold  tenants  are  not  liable  to  contribute,  for  nothing  is  part  of  the  manor 
but  demesnes  and  services,  and  not  the  lands  of  the  tenants ;  and  though 
the  copyholds  are  afterwards  enfranchised,  yet  they  are  not  chargeable, 
because  it  only  alters  the  manner  of  the  tenure. (s) 


r*698i   *^^-  Ji"lwi*i'^^  rcIatCiie  to  CopuftclUs,  antr  their 


§  901 
902, 


903, 

904. 
905, 
906, 
907. 
908. 


909. 


Injuries'affecting  Lord  or  Tenant. 

Remedies  for  the  Lord. 

Seizure. 

What  Lord  may  seize  quousquc. 

Other  Remedies. 

In  what  Courts. 

Remedies  for  the  Tenant. 

Ejectment. 

Trespass. 

Remedies  for  Commoners. 

Mandamus. 

To  compel  Admittance  of  Customary 
Heir. 

To  hold  a  Court. 

To  compel  Acceptance  of  Sur- 
render. 


§  910 


911. 

912. 
913. 


To  inspect  Court  Rolls. 
To  inrol  Surrender. 
Actions  by  Copyholders. 
Li  what  Courts. 
Personal  Actions. 
Aid  of  Courts  of  Equity. 

914.  To  produce  the  Court  Rolls. 

915.  To  discover  Boundaries. 

916.  In  Cases  of  Forfeiture. 
To  restrain  Waste. 

917.  In  case  of  doubtful  Rights. 
Bills  of  Po.acc. 

To  avoid  Multiplicity  of  Suits. 
In  Cases  of  Fraud. 
In  Cases  of  Irregularity  in  Lord's 

Court. 


918. 


§  901.  The  injuries  relating  to  copyholds  are  those  which  affect  either 
the  lord  or  the  tenant.  Of  the  former  kind  are  subtraction  of  services,  com- 
mitting waste,  and  others  which  cause  a  forfeiture,  see  ante,  §  872,  also  post, 
Injuries  to  Things  Real.  Those  which  affect  the  tenant  are  ouster,  or 
what  is  equivalent  to  it,  refusing  to  admit  a  tenant,  and  abridging  a  tenant  of 
his  rights  of  common. 

902.  The  remedies  for  the  lord  are  entry  and  seizure,  ejectment,  and 
case. 

(p)  Parker  v.  Turner,  1  Vern.  303.  458 ;  S.  C.  nom.  Barker  v.  Turner,  2  Chan.  C.  174; 
see  also  Cludloner  v.  Murhall,  2  Ves.  jun.  524;  and  4  East,  283. 

{q)  Howard  v.  Bartlet,  Hob.  181  ;  S.  C.  nom.  Waller  v.  Bartlctt,  2  Roll.  Rep.  178 ;  S.  C. 
nom.  Waldoe  v.  Bcrtlet,  Cro.  Jac.  572  ;  S.  C.  nom.  Waldor  and  Barkley's  case,  Palm. 
Ill;  sec  also  Murrel  v.  Smith,  4  Co.  24;  Lashmer  v.  Avery,  Cro.  Jac.  126. 

(r)  Dancer  v.  Evctt,  2  Vern.  250. 

is)  Rich  V.  Barker,  Hardr.  131. 


COMMON     COPYHOLDS.  475 

Seizure  by  entry  is  the  remedy  in  cases  of  forfeiture,  but  the  lord  of  a 
manor  may,  in  some  cases,  only  seize  rjuoitsqiie,  and  not  absolutely  as  for 
a  forfeiture  ;  thus,  after  three  proclamations  for  the  tenant  to  come  in  and 
be  admitted,  if  the  tenant  fail  to  attend,  the  lord  may  seize  quousque  ;  as 
where  the  heir  was  beyond  seas  at  the  time  of  the  ancestor's  death,  held, 
that  the  lord  had  a  right  to  seize  in  the  interim,  though  *he  could  r-^pnn  i 
not  seize  absolutely  as  forfeited  ;(<)  so,  although  a  feme  covert  is  '-  -^ 
protected  from  forfeiture  by  the  statute  11  G.  4  &  1  W.  4,  c.  G5,  (Dig.  P. 
ii.  tit.  Courts,)  yet  the  lord  may  enter  in  the  meantime  ;  so,  where  one 
saying  he  would  come  if  the  lord  had  a  court,  otherwise  not,  held,  not  to  be 
a  forfeiture,  but  the  lord  on  such  refusal  might  seize  quousque  •,{ii)  and  the 
lord  of  a  manor  cannot  seize  a  copyhold  estate  as  forfeited  pro  defectu 
tenentis  without  a  custom  ;  therefore,  where,  on  the  death  of  a  copyholder 
of  inheritance,  the  lord,  after  three  proclamations  for  the  heir  to  come  in 
and  be  admitted,  seized  the  estate  into  his  hands,  and  afterwards  granted 
it  to  another,  the  Court  considered  it  as  an  absolute  seizure,  and  conse- 
quently irregular,  there  being  no  custom  to  warrant  it,  and  being  irregular 
as  an  absolute  seizure,  it  could  not  afterwards  be  set  up  as  a  seizure  quous- 
que ;{v)  so,  if  the  lord  do  not  take  advantage  of  the  forfeiture  within  twenty 
years,  his  right  is  said  to  be  barred  ;(i')  see  further,  as  to  the  dispensing 
with  a  forfeiture,  ante,  §§  888  et  seq.,  and  as  to  the  taking  advantage  of  a 
forfeiture,  ante,  §§  892  et  seq. 

A  lord  may,  however,  seize  cop3rhold  land  quoKsque  by  virtue  of  a  right 
which  accrued  to  the  preceding  lord,  on  default  of  the  heirs  coming  in  to  be 
admitted,  even  although  he  be  the  devisee  and  not  the  heir  of  the  prece- 
ding lord  ;(.r)  but  to  entitle  the  lord  to  make  svich  seizure,  there  must  be 
three  proclamations  made  at  three  consecutive  courts,  Bover  v.  Trueman  ;(y) 
and  in  this  case  it  was  said,  "The  seizure  is  rather  in  the  nature  of  a  pro- 
cess at  the  instance  of  the  lord,  by  way  of  cape  or  distringas,  to  compel  an 
appearance  by  the  heir,  than  a  forfeiture." (;r)  In  a  subsequent  rehearing 
of  *this  case  it  was  said,  that  the  proclamations  at  the  lord's  court  r-^.^n.r^-^ 
are  substituted  for  the  notice  which  ought  to  be  given  to  the  heir  if  ^  -" 
known  that  the  tenancy  is  vacant.  The  proceeding  bears  some  analogy  to 
proceedings  in  outlawry  to  compel  a  party  to  appear  in  court  to  answer  the 
complaint  of  another. (a) 

903.  For  denying  of  services  the  lord  may  either  seize  or  distrain,  as  in 
the  case  of  rents,  fines,  reliefs,  or  heriots,  see  ante,  §§  802,  815 ;  or  for  non- 

(0  Underhill  v.  Kelsey,  Cro.  Jac.  226. 

(«)  Cocke  V.  Lees,  cited  in  1  Keb,  287. 

(d)  Tarrant  v.  Hillier,  3  T.  R.  170. 

{x)  Bover  v.  Trueman,  1  B,  &  Ad.  736.*  {y)  1  B.  &  Ad.  736.» 

'  (2)  Per  Bayley,  J.,  Bover  v.  Trueman,  1  B.  &  Ad.  746  ;^  see  also  Lechford's  case,  8 
Co.  99  a ;  Baspool  v.  Lon^,  2  Cro.  El.  879  ;  S.  C,  Yclv.  1  ;  Noy,  42  ;  Underbill  v.  Kelsey, 
Cro.  Jac.  226;  S.  C,  Godb.  268;  Runmey  v.  Eves,  1  Leon.  128;  Anderson  v.  Hayward, 
3  Leon.  321  ;  S.  C,  4  Leon.  40  ;  King  v.  Delliston,  1  Carth.  41  ;  S.  C,  1  Salk.  386  ;  1 
Lutw.  765;  3  Mod.  221  ;  1  Show.  31.  84  ;  Ashton  v.  Hutton,  2  Wils.  162;  Whitbread  v. 
Jenny,  5  East,  522;  Gilb.  Ten.  230,  Watk.  cd,  (N)  100;  1  Walk.  Cop.  231,  all  cited 
and  recognized  as  authorities  on  the  subject  of  the  three  proclamations  necessary  to  be 
made. 

(a)  Per  Lord  Tentcrden,  C.  S.,  Bover  v.  Trueman,  1  B.  &  Ad.  746.» 

sEng.  Com.  Law  Reps.  xs.  485 


476  crabb's  law  of  real  property. 

attendance  at  court  may  amerce,  see  ante,  §  888.  So,  the  lord  of  the  manor 
may  plead  or  be  impleaded,  or  avow  for  the  rent  or  services  of  his  copyhold 
tenant  in  any  court  of  equity,  for  he  hath  an  estate  at  common  law  in  the 
rent,  and  it  is  due  to  him  on  the  same  grounds  in  law  as  the  rents  of  free- 
hold lands,  for  otherwise  he  would  be  both  judge  and  party, (6)  see  further, 
as  to  relief  in  equity,  infra,  §  913. 

904.  A  copyholder  may  have  either  an  action  of  ejectment,  of  trespass,  or 
on  the  case,  either  against  a  stranger  or  against  the  lord,  according  to  the 
circumstances,  and  also  in  some  cases  a  mandamus,  and  may  also  in  some 
instances  have  relief  in  equity,  see  infra,  §  913. 

905.  It  has  long  been  settled,  that  a  copyholder  may  try  his  title  in  an 
action  of  ejectment,  and  accordingly  the  lessee  of  a  copyhold  for  one  year 
may  maintain  ejectment,  inasmuch  as  his  term  is  warranted  by  law,  and  it 

-.  is  a  speedy  course  to  recover  the  possession  of  land  against  a 
L  J  stranger  ;(c)  *and  as  a  copyholder  cannot  demise  beyond  a  year 
without  a  license,  unless  by  special  custom,  it  has  been  thought  that  he 
ought  in  such  case  to  allege  the  custom,  or  shew  the  license  ;(rf)  it  has, 
however,  been  held,  that  if  a  copyholder  make  a  lease,  even  though  not 
warranted  by  the  custom,  yet  it  shall  be  good  so  as  to  maintain  an  eject- 
ment against  a  stranger,  for  as  between  the  lessor  and  the  lessee,  and  all 
others,  except  the  lord  of  the  manor,  such  a  lease  is  good,  Downingham's 
case  ;(e)  see  also  S.  P.,  Streat  v.  Virrall,(_i;-)  Peter's  case  ;(/j)  also  Goodwin 
V.  Longhurst,(z)  Collins  v.  Harding,(A:]  Homes  and  Bingley,(Z)  Sloper  v. 
Gibson, (7u)  Rumney  and  Eve's  case,(n)  in  all  which  cases  the  same  doc- 
trine is  laid  down  ;  so,  in  Petty  v.  Evans, (o)  held,  that  in  an  ejectment  by  , 
the  lessee  of  the  copyholder,  it  is  sufficient  that  the  count  be  general,  with-  \ 
out  any  mention  of  the  license  ;  and  on  the  other  hand,  in  Anderson  and  \ 
Heywood's  case,(;j)  it  was  holden,  that  a  copyholder  of  inheritance  of  a  ; 
manor  in  the  hands  of  the  king,  and  who  was  ousted  of  his  copyhold,  had  » 
not  gained  any  estate,  so  as  he  might  make  a  lease  for  years,  upon  which  to  i 
maintain  an  ejectment,  but  that  he  had  a  possession  only  against  all  f 
strangers,  and  see  Nalson  v.  Kenington  ^{q)  it  is,  however,  settled,  that  ■ 
no  ejectment  can  be  maintained  by  a  copyholder,  except  under  a  lease 

(/))  Salk.  186,  pi.  ^  ;  see  also  Dench  v.  Bampton,  4  Ves.  700. 

(c)  Mclwicli  and  Lutcr,  4  Co.  26;  S.  C,  1  Cro.  El.  lO^;  sec  also  Co.  Cop,,  s.  51,  tr. 
119 ;  Cole  v.  Wall,  1  Cro.  El.  224 ;  S.  C.  nom.  Cole  v.  Walles,  1  Leon.  328 ;  S.  P.,  Spark's 
case,  2  Cro.  El.  676  ;  S.  C.  nom.  Sprakc's  case,  Moor,  569  ;  S.  P.,  Froscl  v.  Welch,  Cro. 
Jac.  403 ;  Anon.,  Godb.  268 ;  Gilb.  Ten.  213,  but  see  contri,  Stepliens  v.  Eliot,  2  Cro. 
El.  484. 

{(l)  Wells  V.  Partridge,  1  Cro.  El.  469  ;  see  also  Cramporn  v.  Freshwater,  Brownl.  133; 
Ever  V.  Aston,  Moor,  272;  S.  C.  nom.  Ewer  v.  Astwike,  1  Anders.  193;  Gregory  v. 
Harrison,  Moor,  679  ;  Supp.  Co.  Cop.,  s.  20  ;  Rumiicy  v.  Eve,  1  Leon.  128;  Gilb.  Ten. 
436,  (N.  92.) 

(e)  0\v.  17,  18.  {s)  Cited  Cro.  Car.  304. 

(/()  Cited  Godb.  365.  (i)  1  Cro.  EI.  535. 

(A-)  2  (^ro.  El.  623.  (/)  Sty.  380. 

(m)  Moor,  100.  '  (n)  ILeon.  100. 

(o)  2  Brownl.  40.  (p)  3  Leon.  221 ;  S.  C,  4  Leon.  230. 

(5)  Clayt.  1. 


COMMON    COPYHOLDS.  477 

at  common  law;(r)  see  further,  as  to  evidence  and  other  matters  in  eject- 
ment, post,  under  the  head  of  Injuries  to  Things  Real  and  their 
Remedies. 

*794.  So,  a  copyholder  shall  have  trespass  by  the  common  law,  for  r^^f.,y-^ 
a  trespass  done  upon  his  copyhold  ;(s)  so,  he  shall  have  it  against  his  ^  J 
lord  if  he  enters  upon  him  without  cause, (/)  or  if  he  cuts  down  trees  not 
being  timber  ;(m)  but  see  Ashmond,  or  Ashmead,  v.  Ranger,(a')  where  the 
Lords,  by  a  majority  of  one,  reversed  the  decision  of  all  the  judges  of  the 
realm. 

The  customary  heir  of  a  copyholder  being  a  complete  tenant  before  ad- 
mittance, against  all  persons  but  the  lord  may  maintain  trespass  and  bring 
ejectment,  without  having  been  admitted  ;;?/)  so,  if  the  surrenderee  be  in 
possession,  he  may  maintain  trespass  before  admittance,  that  being  a  posses- 
sory action,  but  before  his  admittance  trespass  can  only  be  maintained  by 
the  surrenderer.(z) 

907.  In  the  case  of  common,  the  injuries  which  affect  the  copyholder  are, 
disseisin  of  his  common,  or  disturbance  by  the  lord  or  other  commoners,  or 
by  strangers  intruding  on  the  waste.  As  against  the  lord,  even  in  the  case 
of  a  total  exclusion,  the  copyholder  may  abate  the  nuisance,  see  ante,  §  324  ; 
but  in  other  cases  he  may  have  an  action  on  the  case,(2- )  and  as  against 
strangers  he  may  have  his  remedy  by  distress,  see  ante,  §  325. 

908.  Copyholders  may  also  have  a  mandamus  in  certain  cases,  as,  where 
the  lord  refuses  to  admit  a  tenant,  a  mandamus  will  lie,  Roe  v.  Griffiths, (a) 
where  it  is  said,  "  The  admittance  is  only  form.  'Tis  a  ceremony  derived 
from  the  origin  of  copyholds ;  but  the  lord's  act  is  mere  form,  he  is  a  mere 
instrument,  and  compellable  to  admit  according  to  the  surrender  :"(6)  and 
although  it  was  at  one  time  doubted  *whether  this  writ  would  lie  to  *_,^g-, 
compel  the  admittance  of  a  party  claiming  by  descent,  because  he  L  J 
has  a  complete  title  against  all  the  world  except  the  lord,(c)  yet  it  was  said 
in  R.  V.  Coggan,(rf)  that  the  courts  had  for  many  years  been  in  the  habit 
of  granting  such  writs,  and  their  power  of  so  doing  could  not  be  doubted  ; 
see  also  Conolly  v.  Vernon, («)  R.  v.  Stafford,  (Marquess)(/)  R.  v.  Water 
Eaton,(g-)  R.  v.  Willes,(/t)  R.  v.  Brewers'  Company,(t)  R.  v.  Bonsall, 
(Lords,  &c.)(A;)  R.  v.  Wilson,  (Lord,  &c.)(/) 

(r)  Spark's  case,  Cro.  El.  676;  Cole  v.  Walks,  1  Leon.  328;  S.  C.  nom.  Sprake's  case 
Moor,  569. 

(s)  2  H.  4,  12  a ;  7  Ed.  4,  19  a.  (i)  Litt.,  s.  77 ;  1  Inst.  60,  b. 

(u)  1  Leon.  272,  pi.  365.  (x)  Ante,  §  850. 

(y)  Brown's  case,  4  Co.  22  ;  Ca  Cop.,  s.  41,  tr.  94  ;  Kitcli.  119. 

iz)  Berry  v.  Greene,  1  Cro.  El.  349.  (a)  3  Burr.  1961. 

(6)  Per  Lord  Mansfield,  C.  J.,  Roe  v.  Griffiths,  3  Burr.  1961. 

(c)  R.  V.  Rennett,  2  T.  R.  198;  see  also  Williams  v.  Lord  Lansdale,  3  Ves.  752,  754. 

(rf)  6  East,  431;  S.  C,  2  Smith,  417.  (c)  5  East,  51 ;  S.  C,  1  Smith,  318 

( f)  7  East,  521 ;  S.  C,  3  Smith,  459.  (e)  2  Smith,  54. 

(A)  3  B.  &  A.  510,e  (i)  3  B.  &  C.  172 ;  S.  C,  4  D.  «fc  R.  492. 

(Jc)  3  B.  &  C.  173  ;f  S.  C,  4  D.  &  R.  825.  (l)  10  B.  &  C.  80.s 

eEng.  Com.  Law  Reps.  v.  361.    fJd.  x.  47.    fid.  xxi.  29, 
December,  1846. — 31 


478       crabb's  law  of  real  property. 

909.  So,  a  mandamus  Avill  be  granted  in  other  matters  affecting  custom- 
ary estates,  as  for  the  purpose  of  compelling  the  lord  of  a  manor,  or  his 
steward,  to  hold  a  court,  and  the  homage  to  present  certain  conveyances  of 
burgage  tenements,  entitling  the  purchasers  to  be  sworn  in  burgesses  of  the 
corporation,  and  to  vote  for  members  of  Parliament,  (m) 

So,  to  compel  the  acceptance  of  a  surrender,  and  to  admit  the  surrenderee, 
R.  V.  Boughey  (Lord,  &c.)(n)  where  the  return  stated  a  custom  that  if  any 
person,  not  being  before  a  customary  tenant  or  not  dwelling  within  the 
manor,  should  take  any  estate  as  a  purchaser,  by  surrender  or  otherwise, 
of  any  customary  tenant  within  the  manor,  he  should  pay  an  arbitrary  fine, 
but  that  persons  being  customary  tenants  paid  another  and  smaller  fine,  and 
it  further  stated,  that  B.  having  purchased  the  equity  of  redemption  of  a 
customary  estate  of  considerable  value,  afterwards  and  before  he  was  ad- 
mitted thereto  purchased  the  land  in  question,  being  a  small  customary 
-,  estate,  in  order  to  be  admitted  to  that  first,  and  alleged  this  to  be  *a 
L  -J  fraud  upon  the  lord,  the  Court  held,  that  B.  might  lawfully  make 
such  second  purchase  in  order  to  avail  himself  of  the  custom  in  favour  of 
tenants  of  the  manor;  and  it  is  there  added,  "Even  admitting  that  the 
second  purchase  were  fraudulent,  it  is  by  no  means  clear  that  the  return 
would  be  sufficient ;"(«)  though,  in  that  case,  the  Court  inclined  to  think, 
that  the  party  would  not  have  been  entitled  to  the  assistance  of  this  preroga- 
tive writ.(o) 

910.  So,  the  lord  is  compellable  by  this  writ  to  permit  the  court  rolls  to 
be  inspected  by  any  person  claiming  an  interest  under  them;  and  it  was 
granted  to  one  who  had  a  prima  facie  title  to  certain  copyhold  lands  ;(/>] 
and  it  will  be  granted  as  of  course  on  the  application  of  a  tenant  ;((/)  and  it 
is  not  necessary  that  there  should  be  any  suit  depending ;(r)  but,  in  R.  v. 
Allgood,(s)  the  Court  held,  that  a  freehold  tenant  had  no  right  to  inspect  the 
court  rolls  unless  there  were  some  cause  depending  in  which  his  title  might 
be  involved. 

So,  a  mandamus  might  lie  against  the  lord,  or  his  steward,  to  compel  the 
inrolment  of  a  surrender,  and  it  was  refused  in  one  case  only  because  the         , 
surrender  had  not  been  prepared  by  the  steward  or  his  deputy. (/)  ■ 

911.  A  copyholder  must,  in  every  action  real,  implead  and  be  impleaded 
in  respect  of  his  copyhold  land  in  the  court  of  the  manor  of  which  it  is 
holden,  for  he  cannot  implead  or  be  impleaded  in  such  case  by  the  queen's 
writ;(?/)  and  therefore,  before  the  3  &  4  W.  4,  c.  27,  abolishing  most  real 
actions,  or  plaints  in  the  nature  thereof,  (see  Dig.  P.  iii.  tit.  Limitations,)  if 

(w)  R.  V.  Medhurst,  (BorougJi)  1  Wils,  283. 

(t»)  1  B.  &  C'.  565  ;  S.  C.  nom.  R.  v.  Micr  and  Forton,  (:\Ianor,  &c.)  2  D  &  R.  824, 

(o)  Per  Baylcy,  J.,  R.  v.  Boughey,  (Lord)  &c.)  1  B.  &  C.  565  ;e  S,  C.  nom.  R.  v.  Mier 
and  Forton,  (Manor,  &.c.)  2  D.  &  R.  824. 

ip)  R.  V.  I.ucas,  10  East,  235.  (9)  R.  v.  Shelly,  3  T.  R.  141. 

(r)  R.  V.  Tower,  4  M.  &  S.  162;  see  also  Freeman  v.  Phillips,  Id.  486  ;  Bateraan  v. 
Phillips,  4  Taunt.  162  ;  Rogers  v.  Jones,  5  D.  &.  R.  484.f 

(s)  7  T.  R.  746.  (0  R.  v.  Rigge,  2  B.  &.  A.  550. 

(u)  Litt.,  s.  76. 

•■Eng.  Com.  Law  Reps.  viii.  152.     'Id.  xvi.  243. 


COMMON    COPYHOLDS.  479 

he  impleaded  another  for  his  tenements,  *he  should  have  a  plaint  in  j-^,yf.f.~, 
the  lord's  court,  and  make  protestation  to  sue  in  the  nature  of  an  L  J 
assize  of  novel  disseisin,  &c.  ;(y)  and  if  an  erroneous  judgment  were  given, 
he  should  not  have  a  writ  of  false  judgment  in  respect  of  the  baseness  of  his 
estate,  but  he  must  have  sued  to  the  lord  by  petition  ;(.r)  but  a  copyholder 
might  have  the  action  of  ejectment,  which  is  now  the  only  proper  action 
retained  for  trying  titles  to  land,  see  ante,  §  905. 

912.  Actions  merely  personal,  the  copyholder  may  sue  at  common  ]a.w;(y'\ 
so,  a  copyholder  may  have  case  against  the  lord,  or  a  stranger,  for  an  injury 
done  to  the  common  belonging  to  his  copyhold  ;(z')  but  if  lessee  for  years  of 
a  copyholder  cuts  down  the  trees,  the  copyholder  shall  sue  in  the  lord's 
court  to  punish  this  ofTence  ;(z]  so,  if  a  copyholder  surrenders  to  the  use  of 
B.,  upon  trust  that  he  shall  hold  the  land  until  he  hath  levied  certain  money, 
and  that  after  lie  shall  surrender  to  the  use  of  C,  the  money  is  levied,  and 
B.  is  required  to  make  a  surrender  to  the  use  of  C,  and  refuses,  upon  C. 
exhibiting  his  bill  to  the  lord  of  the  manor  against  B,,  if  B.  persists  in  his 
refusal,  the  lord  may  seize  and  admit  C.  to  the  copyhold,  for  in  such  case 
he  is  chancellor  in  his  own  court,(a)  and  he  may  do  right  according  to  con- 
science ;(6)  so,  if  a  surrender  be  made  to  the  use  of  another,  without  ex- 
pressing what  estate  he  shall  have,  a  custom,  that  the  lord  may  grant  it  in 
fee  to  him  for  whose  use  the  surrender  was  made,  is  good.(c) 

913.  If  the  lord  refuses  admittance  to  the  heir  or  surrenderee,  the  copy- 
holder may  sue  in  Chancery,  and  will  be  there  relieved  ;[d)  but  a  Court  of 
equity  will  not  compel  the  *lord  to  admit  a  person  who  does  not  shew  rji;--r,f.-i 
a  colourable  title,  and  that  there  is  a  reasonable  prospect  of  succeed-  L  -^ 
ing  at  law.(e) 

914.  So,  a  court  of  equity  will  also  make  an  order  on  the  lord  or  steward 
to  produce  the  court-roll  for  the  inspection  of  any  one  claiming  an  interest 
under  them  ;(/)  and  although  a  Court  of  law,  in  a  question  between  the 
lords  of  different  manors,  will  not  enforce  an  inspection  of  the  court-rolls, 
yet  a  Court  of  equity  will  do  so  on  a  bill  for  a  discovery  ;(g-)  but  the  Court 
refused  to  interfere  upon  a  petition  to  have  court-rolls  delivered  by  a  steward 
appointed  by  trustees  to  a  steward  appointed  by  a  testamentary  guardian, 
there  being  no  suggestion  of  improper  conduct,  or  advantage  from  the 
change.(/t) 

915.  So,  a  Court  of  equity  will  entertain  a  bill  by  the  lord  of  a  manor  to 

(»)  Litt.,  s.  76.  (x)  1  Inst.  64,  a ;  F.  N.  B.  12,  B. 

(y)  Co.  Cop.,  s.  143.  (z)  2  Leon.  201  ;  2  Brownl.  146 ;  1  Roll.  Abr.  106. 

(a)  Borneford  and  Packingfton's  case,  1  Leon.  1.  (/>)  Ow.  63. 

(c)  Brown  v.  Foster,  Cro.  El.  392. 

(d)  Westwick  V.  Wyer,  4  Co.  28  b  ;  Ford  v.  Hoskins,  Cro.  Jac.  368  ;  S.  C,  2  Bulstr.  336 : 
S.  C,  1  Roll.  Rep. ;  see  also  Roswell's  case,  Dy.  264 ;  Moor  v.  Huntington,  Nels.  12 ; 
Lunsford  v.  Fopham,  Totli.  64  ;  Towel  v.  Cornish,  2  Keb.  357  ;  Noden  v.  GriiSths,  4  Burr. 
1961  ;  Atkins  v.  Atkins,  5  Burr.  2787 ;  Gilb.  Ten.  291. 

(e)  WiddowsGU  v.  Harrington  (Earl),  1  Jac.  &,  VV.  543. 

(/)  Stacie's  case,  Latch,  182  ;  Corbett  v.  Peshall,  Toth.  109  ;  Draper  v.  Zouch,  Finch, 
249  ;  Langham  v.  Lawrence,  Hardr.  180  ;  Anon.,  2  Vez.  578  ;  see  also  Anon.,  Sty.  128. 
ig)  Anon.  2  Vez.  621 .  (A)  Mott  v.  Buxton,  7  Ves.  201. 


480  crabb's  law  of  real  property. 

discover  the  boundaries  and  description  of  lands,  and  for  a  commission  to 
issue,  if  necessary,  to  distinguish  freeholds  from  copyholds,  where  they  are 
intermixed  ;(j)  but  this  will  be  done  only  under  special  circumstances, 
Bouverie  v.  Prentice  ;{k'\  see  also  Rouse  v.  Barker,(/)  Wake  v.  Conyers,(m) 
Winterton  v.  Lord  Egremont,(n)  Spier  v.  Crawter,(o)  from  which  it  ap- 
pears that  equity  interferes  to  settle  boundaries  only  when  the  soil  itself  has 
been  in  question,  or  to  prevent  a  multiplicity  of  actions. (p) 

^  -,  *916.  So,  a  Court  of  equity  will,  under  special  circumstances, 
L  -J  grant  relief  against  an  act  that  is  a  forfeiture,  as  where  waste  has 
been  inadvertently  done,{q)  or  done  by  a  stranger  ;(r)  so,  in  cases  of  permis- 
sive waste,  equity  will  generally  give  relief  ;(s)  so,  it  has  been  relieved 
against  a  forfeiture,  when  timber  on  one  copyhold  has  been  cut  down  to  be 
employed  for  the  repair  of  another  :(Q  and  in  the  case  of  cutting  timber,  it 
has  directed  an  issue  to  try  quo  animo  it  was  cut;(?/)  but  it  will  not  relieve 
against  wilful  waste,  nor  unless  a  compensation  can  be  made  to,  the  lord;(a;) 
so,  where  copyholders  are  allowed  by  the  custom  to  cut  down,  it  will  grant 
an  injunction  to  restrain  waste  in  favour  of  the  remainder-man,  the  same  as 
in  cases  of  freehold  ;(,y)  so,  a  customary  heir  of  a  copyholder  taking  by  way 
of  resulting  trust  until  the  happening  of  a  contingency  has  been  restrained 
from  committing  waste  ;(z)  and  although  in  Dench  v.  Bampton,(a)  the  Court 
refused  to  interpose  to  prevent  waste,  leaving  the  lord  to  his  remedy  for  the 
forfeiture,  and  in  a  previous  case  it  had  been  held,  that  a  bill  for  discovery 
of  waste  was  demurrable  to,(/;)  yet,  in  Richards  v.  Noble, (c)  a  bill  by  the 
lord  against  the  copyholders  was  entertained,  for  an  account  of  turves  cut 
and  taken,  and  an  injunction  granted,  not  waiving  the  forfeiture,  on  the  prin- 
ciple that  the  forfeiture  is  often  a  very  inadequate  remedy. 

917.  Where  the  risrht  between  the  lord  and  tenant  is  doubtful,  a  Court  of 
-.  equity  will  interpose  to  prevent  any  assertion  *of  such  right  until  it 
L  ^  has  been  tried  at  law;((/)  see  ante,  §  854.  So,  although  one  tenant 
cannot  institute  a  suit  on  an  excessive  fine,  yet,  to  avoid  a  multiplicity  of 
suits,  equity  will  entertain  a  suit  by  several  for  the  same  general  purpose  of 
being  relieved  against  an  excessive  fine.  So,  a  bill  of  peace  may  as  well  be 
brought  by  the  lord  against  the  tenants,  as  by  the  tenants  against  the  lord  ;(e) 


(i)  Leeds  (Duke)  v.  Powell,  1  Vez.  172  ;  Same  v.  Strafford  (Earl),  4  Ves.  180. 

{k)  1  B.  C.  C.  201.  (/)  4  B.  P.  C  660. 

(m)  2  Cox,  362 ;  S.  C,  1  Eden,  331  ;  S.  C,  cited  as  VVebh  v.  Conyers,  1  B.  C.  C.  41. 

(n)  Cited  2  Anslr.  .392.  (o)  2  Mcr.418. 

(/))  lb.;  see  also  Wintle  V.  Carpenter,  Fincli,  462;  Ely  (Bp.)  v.  Kenrick,  Bunb.  322; 
Clayton  v.  Cookes,  2  Atk.  450  ;  Norris  v.  Le  Neve,  3  Atk.  82  ;  Lethulier  v.  Castleniain, 
Sel.  Ca.  temp.  Kino^,  60  ;  S.  C,  1  Diek.  46;  Lord  Abergavenny  v.  Thomas,  3  Anst.  668, 
n.  (o) ;  Willis  v.  Parkinson,  2  Meriv.  507. 

(9)  Nasli  V.  Derl)v,  2  Vern.  537.  (r)  Taylor  v.  Hooc,  Toth.  237. 

(s)  Commin  v.  Kinsmcll,  cited  Toth.  108 ;  Thomas  v.  Porter,  1  Chan.  Ca,  95  ;  S.  C,  2 
Freem.  137. 

(t)  Nash  V.  Derby  (Earl),  sup.  {u)  Thomas  v.  Porter,  1  Chan.Ca.  95. 

(x)  Peachy  v.  Somerset  (Duke),  Prec.  Chan.  568;  S.  C,  1  Str.  447. 

{y)  Cornisii  v.  New,  Finch,  220.  {z)  Stansfield  v.  Ilabergham,  10  Ves.  278. 

(a)  4  Ves.  703. 

(6)  Attorney-General  v.  Vincent,  Bunb.  192  ;  Lord  Uxbridgre  v.  Staveland,  1  Vez.  56. 

(c)  3  Mer.  673.  («/)  Grey  v.  Northumberland  (Duke),  13  Ves.  236. 

(c)  Conyers  v.  Lord  Abergavenny,  1  Atk.  285. 


PRIVILEGED    COPYHOLDS.  481 

and  the  Court  has  entertained  such  bills  where  the  tenants  have  opposed  the 
lord's  approvements,  under  the  Statute  of  Merton,  see  Dig,  P.  ii.  tit.  Com- 
mons '■,{/)  and  such  bills  may  be  entertained,  although  the  parties  have  no 
greater  estate  than  for  life.(g') 

So,  on  the  same  principle  of  avoiding  a  multiplicity  of  suits,  tenants  of  a 
manor  have  been  allowed  to  establish  their  rights  to  the  profits  of  a  fair. (A) 
So,  compositions  between  lords  and  tenants  have  been  held  to  bind  a  purchaser 
or  heir  ;(i)  but  a  decree  against  the  lord  of  the  manor  will  not  bind  copyholders 
who  are  no  parties  to  the  suit. (A;) 

918.  Equity  will  interpose  in  cases  of  fraud  as  much  when  it  concerns 
copyholds  as  freeholds,  and  will  set  aside  conveyances  for  inadequacy  of 
price. (/)  So,  a  Court  of  equity  will  correct  the  proceedings  in  the  lord's 
court,  where  any  thing  is  done  against  conscience,  though  no  appeal  or  error 
lies.(m)  So,  where  copyholds  have  been  surrendered  absolutely,  and  with- 
out an}^  condition,  yet  if  it  can  be  *shewn  that  the  surrender  was  p;^«r.Q-| 
intended  as  a  security  only  for  the  repayment  of  money,  a  Court  of  L  -I 
equity  will  decree  a  redemption  against  the  surrenderee. (n)  So,  it  will 
supply  a  surrender  in  case  of  any  defect  in  the  presentment,  or  the  want  of 
surrender,  in  favour  of  a  younger  child. (o)  So,  for  a  widow  against  a  col- 
lateral heir;(;j)  but  a  want  of  surrender  will  not  be  supplied  in  favour  of  a 
grandchild,  where  the  heir  is  not  provided  for;(5)  but  equity  will,  in  some 
cases,  to  support  the  devise  of  a  copyhold  estate,  supply  the  defect  of  a  sur- 
render, though  the  defective  execution  of  a  devise  of  a  freehold  estate  will 
not  be  aided  in  equity,  (r) 


SECTION  II. 

OP   PRIVILEGED   COPYHOLDS. 

§  919.  There  are  two  kinds  of  copyhold  tenure,  which  have  been  distin- 
guished by  the  name  of  privileged  copyholds :  namely, — 

1.  Customary  freehold. 

2.  Ancient  demesne. 

(/■)  Arthingtonv.  Fawkes,  2  Vcrn.  356;  S.  C,  1  Eq.  Ca.  Abr.  103;  Filcwood  v.  Palmer, 
Mor.  169  ;  Hanson  v.  Gardiner,  7  Ves.  305 ;  Powell  v.  Powis  (Earl),  1  Y.  &,  J.  15U. 

(c)  Dunn  V.  Allen,  1  Vern.  427 ;  see  also  Meadows  v.  Pathcrick,  Finch,  154. 

(A)  New  Elmc  Hospital  v.  Andover,  1  Vern.  266. 

(i)  Musgrave's  case,  Car}^,  38  ;  How  v.  Brornsgrrove  (Tenants),  1  Vern.  22  ;  Cowper  v. 
Clerk,  3  P."  VVms.  155  ;  Atkins  v.  Hatton,  2  Anst,  390  ;  sec  also  Toth.  Ill,  citing  Sterling 
V.  Barton  (Tenants).  (k)  2  Atk.  516. 

(/)  Wood  V.  Abrey,  3  Madd.  424. 

(m)  Christian  v.  Corren,  1  P.  Wnis.  350  ;  see  also  Ashe  v.  Royale,  1  Vern.  367  ;  Smith 
V.  St.  Paul's  (Dean,  &c.),  Show.  P.  C.  67. 

(n)  Clench  v.  Witherly,  Finch,  376.  (o)  Rogers  v.  Marshall,  17  Vcs.  2!)4. 

( p)  Fielding   v.   Win  wood,  16  Ves.   90;    see  also   /3iscoc  v.  Cartwriglit,   Gilb.    121 
Chapman  v.  Gibson,  3  B.  C.  C.  229  ;  Hills  v.  Downlon,  5  Ves.  557. 

(7)  Rodgcrs  V.  Marshall,  17  Ves.  294.  ()•)  Brodie  v,  Barry,  2  V.  &  B.  130. 


482  crabb's  law   of  real   property. 


I.  ©ustomatn)  jFrcrUoItJy. 


§  920.  Properties  of  a  Customary  Frecliold. 
921.  Such  Copyholders  have  what  Kind 
of  Freehold. 


§  922.  How  Lands  of  this  Tenure  pass. 
923.  iModc  of  pleading  Customary  Free- 
hold. 


§  920.  "In  some  manors,"  it  js  said,  "  the  tenants  have  the  lands  granted 
unto  them  and  their  heirs  in  fee,  fee-tail,  or  for  hfe  or  years,  according  to 
r*'7in~l  ^^^^  custom  of  the  manor,  and  *not  at  the  will  of  the  lord,  according 
L  -"to  the  custom  in  which  case  the  rolls  and  copies  ought  to  be  made,(s) 
and  these  are  what  my  Lord  Coke  calls  '  copyholds  of  frank  tenure,'  "(t\ 
by  which  name  they  were  distinguished  from  common  copyholds,  and,  in 
reality,  were  distinguished  by  this  property,  that  they  were  not  tenants  at 
will  of  the  lord.  Such  customary  freeholds  still  retain  several  of  the  badges 
of  their  original  base  tenure.  Thus  it  was,  that  though  their  services  were 
certain,  and  so  far  free,  yel.  they  were  villein  services,  and  not  free  services. 
So,  their  mode  of  alienating  or  transferring  their  land  was,  not  by  the  usual 
conveyances  by  deed  at  common  law,  but  by  surrender  into  the  hands  of  the 
lord  ;  and  so,  in  like  manner,  they  could  not  either  sue  or  be  sued  in  the 
queen's  court,  but  only  in  the  court-baron  of  the  lord.  So,  although  the 
lands  were  not  held  at  the  will  of  the  lord,  and  therefore  the  tenant  could 
not  ever  have  been  ousted  at  the  lord's  pleasure,  yet  still  the  lands  were 
liable  to  forfeiture,  and  the  tenant  might  be  ousted  by  his  own  default,  for 
the  non-payment  or  non-performance  of  the  rents  and  services,  which  no 
free  tenant  could  be  by  the  common  law.  So,  likewise,  as  a  further  mark 
of  distinction  by  which  these  tenants  may  be  known  as  copyholders,  and  not 
freeholders,  they  were  not  members  of  the  county  court,  where  all  elections 
by  freeholders  are  directed  to  be  made,  and  were  not  contributary  to  the 
wages  of  the  knights  of  the  shire,  which  were  formerly  raised  by  their  con- 
stituents to  defray  their  expenses  in  Parliament ;(?/)  consequently,  before 
the  2  &  3  W.  4,  c.  45,  they  had  no  vote  for  the  election  of  members  of 
Parliament. 

921.  But  although  these  tenants  have  to  some  purposes  a  freehold,  yet 
this  is  not  so  much  a  freehold  of  tenure  as  a  freehold  of  estate  ;  and  the  bet- 
ter opinion  is,  that  the  freehold  of  such  copyhold  lands  is  in  the  lord,  and  not 
r*7i  1-1  if^  '•1^6  tenant,  even  although  they  pass,  as  is  frequently  the  case  *by 
'-  -^  deed  of  grant,  or  bargain  and  sale  and  admittance,  instead  of  sur- 
render and  admittance  ;(.t)  but  a  distinction  has  been  taken  between  cus- 

(s)  West.  Symb.,  s.  605.         (I)  Co.  Cop.,  s.  32.         (u)  Blackst.  Law  Tract?,  132  et  scq. 

(x)  Stcplienson  v.  Hill,  3  Burr.  1273;  Rcay  v.  Huntinpton,  4  East,  271  ;  Doe  v.  D'An- 
vers,  7  East,  299  ;  see  also  iMoor,  588,  pi.  796 ;  Gale  v.  Noble,  Cartli.  432  ;  Crowtbcr  v. 
Oldfuld,  1  Salk.  3G4;  S.  C,  1  Lutw.  125;  2  Ld.  Rayni.  1225;  Glover  v.  Cope,  1  Sliow. 
284;  Husscy  v.  Grills,  Ambl.  301;  Fcnn  v.  MarioU,  Willes,  430  ;  Oliver  v.  Taylor,  1 
Atk.  474;  Somerset  (Duke)  v.  France,  1  Stra.  G54  ;  Vauglian  v.  Atkins,  5  Burr.  2766  ; 
Burrell  v.  Dodd,  3  B.  &.  P.  378 ;  Roe  v.  Vernon,  5  East,  51 ;  Rae  v.  BrijTjrs,  IG  East,  406 ; 
Doe  V.  Jackson,  1  B.  A:  C.  448 ;;  S.  C.,2  D.  &.  R.  514  ;  sed  contrh,  Bingham  v.  Woodgate, 
1  Russ.  &,  My.  32  ;  S  C.nom.  Iludlestonc  v.  Corbctt,  1  Taml.  183. 

EEng.  Com,  Law  Reps.  viii.  126. 


PRIVILEGED     COPYHOLDS.  483 

tomary  estates  held  of  the  manor,  in  which  case  the  freehold  is  in  the  tenant, 
or  whether  it  be  within  and  parcel  of  the  manor,  where  the  freehold  is  in 
the  lord.(y) 

922.  In  Hussey  v.  Grills(2r)  it  was  held,  that,  where  ihere  is  no  custom 
10  surrender  to  the  use  of  a  will,  a  customary  freehold  can  only  pass  by  a 
will  attested,  by  the  Statute  of  Frauds,  or  now  according  to  the  7  W.  4  &  1 
V.  c.  26,  see  Dig.  P.  iii.  lit.  Wills.  And  so,  in  Willan  v.  Lancaster,(a) 
held,  that  the  equitable  interest  of  a  customary  freehold  would  not  pass  by 
a  will  not  executed  according  to  that  statute,  although  common  copyholds 
were  held  not  to  be  within  that  statute  ;  and  it  has  been  held,  that  a  cus- 
tomary freehold,  whether  strictly  copyhold  or  not  to  all  purposes,  would 
pass  under  the  description  of  "  copyhold"  in  a  will,  the  intention  to  pass  it 
under  that  description  being  apparent. (6)  So,  it  has  been  holden  that  cus- 
tomary or  tenant-right  estates,  held  of  the  lord  by  certain  rents  and  ser- 
vices, according  to  the  custom  of  the  manor,  were  not  within  the  Statutes  of 
Partition,  see  Dig.  P.  iii.  tit.  Partition  ;  and  consequently,  where  it  appeared 
upon  the  face  of  the  plea  that  the  land  was  not  properly  freehold,  the  plain- 
tiff was  nonsuited. (c)  So,  as  customary  freeholds  are  regulated  by  custom 
in  the  same  manner  as  common  *copyholds,  held,  that  a  custom  in  ^-,-„-, 
a  manor,  that  the  grantee  of  a  customary  estate,  which  will  pass  L  -I 
either  by  surrender  or  deed  and  admittance,  must  be  admitted  during  the 
life  of  grantor,  is  good. (J) 

923.  In  one  respect,  namely,  as  to  the  mode  of  pleading,  there  is  a  differ- 
ence between  common  copyholds  and  customary  freeholds,  for  a  copyholder 
must  not  omit  the  words  ad  voluntatem  domini  ;[e\  and  where  these  words 
are  omitted,  it  will  be  intended  to  be  customary  freehold. (e)  See  also  Gale 
V.  Noble, (/)  Hill  v.  Bolton, (o-)  FoUett  v.  Troake;(/i)  in  which  latter  case 
it  was  held  that  a  customary  freeholder  may  prescribe  in  a  que  estate, 
which  a  common  copyholder  cannot  do.  Where,  in  a  "manor,  the  copies 
of  admissions  Avere  anciently  to  hold  of  the  lord,  according  to  the  custom  of 
husbandry  of  the  said  manor,"  but  other  copies  were  to  hold  "  at  the  will  of 
the  lord,"  and  all  modern  copies  were  so  held,  that  this  land  was  copyhold, 
and  not  customary  freehold. (i)  See  further,  as  to  the  distinction  between 
copyholds  and  customary  freeholds,  post,  under  Customary  Estates  and 
Title. 

(y)  Manning's  Exch.  Pract.  42,  359,  2d  ed.  (s)  Ambl.  301. 

(o)  3  Russ.  108.  (6)  Doe  v.  D'Anvers,  7  East,  299. 

(c)  Burrell  v.  Dodd,  3  B.  &,  P.  368.  {d)  Fcnn  v.  Mariott,  Willes,  430. 

(p)  Hu^hs  V.  Harrys,  Cro.  Car.  229.  (  /")  Carth.  432.  (e)2  Lutw.  1171. 

(//)  2  Ld.  Rayni.  1186.  (i)  Bourn  v.  Rawlins,  3  Smith,  405,  ~ 


484 


CRABBS    LAW    OF     REAL    PROPERTY. 


[*713] 


ni.  Ancient  Bcmrsnrs. 


§924. 


925. 
926. 


927. 
928. 
929. 
930. 
931. 


What  is  Ancient  Demesmc.  §931. 

What  Lands  are  Ancient  Demesne.  932. 

Doomsday  Book.                             ■  933. 
Different  Kinds  of  Tenants. 

Enumeration  of  Privileges  belonging  '  934. 

to  tliis  Tenure.  | 

Not  to    be   impleaded    out  of   the  935. 

Manor. 

Not  to  be  impanelled  on  a  Jury.  936. 
To  be  exempt  from  Tolls. 

To  be  free  of  Taxes.  937. 

May  have  a  Writ  of  monstraverunt  938. 
May  become  Frank-fee. 

By  Act  of  the  Queen.  939. 

By  Act  of  the  Lord.  940. 


By  Act  of  the  Tenant. 
Effect  of  a  Fine  or  Recovery. 
Court   of  Ancient   Demesne    not   a 

Court  of  Record. 
Constitution  of  the  Court. 
Suitors  the  Judges. 
Jurisdiction  of  the  Court. 
In  Cases  of  Ouster. 
When  and   how  Ancient   Demesne 

may  be  pleaded. 
Affidavit,  &c.,  necessary. 
Cases  vvlicre  Ancient  Demesne  is  a 

good  Plea,  or  otherwise. 
Not  in  PersonaLActions. 
Duty  of  tlie  Lord. 


§  924.  This  tenure  may  be  considered,  as  to  what  relates  to  its  nature ; 
to  the  privileges  enjoyed  by  tenants  in  ancient  demesne;  how  ancient 
demesne  may  become  frank-free;  court  of  ancient  demesne.  As  to  incidents 
of  the  estate  in  ancient  demesne,  see  post,  Customary  Estati;s. 

1.  JVature  of  ^^ncient  Demesne. 

Tenure  in  ancient  demesne,  at  least  the  free  sort  of  it,  is  a  higher  kind 
of  customary  freehold,  and  it  is  confined  to  such  lands  as  were  held  in  socage 
of  manor  belonging  to  the  Crown,  in  the  reign  of  Edward  the  Confessor  and 
William  the  Conquerer,  and  is,  therefore,  sometimes  designated  "socage  in 
ancient  tenure. "(/c)  All  such  lands  were  set  down  in  a  book  called  Domes- 
day or  Doomsday  Book ;  namely,  those  which  were  in  the  possession  of 
Edward  the  Confessor,  under  the  title  of  Terrse  Regis  Edivardi,  and  those 
-.  in  the  possession  of  *  William  the  Conqueror,  under  that  of  Terrx 
L  ^  Regis  only  ;  and  therefore,  whether  ancient  demesne  or  not  is  to  be 
tried  by  that  book;  but  the  writ  does  not  require  the  production  of  the  book 
itself,  only  a  certificate  of  the  fact  frofA  the  treasurer  and  chamberlain  of  the 
Exchequer ;(/)  and  unless  the  manor  is  mentioned  therein  as  Terrx  Regis 
or  Terrx  Regis  Edwardi,  it  will  not  be  deemed  ancient  demesne,  although 
the  book  should  furnish  evidence  of  a  grant  thereof  from  the  Crown  ;(7n) 
but  this  book  will  not  show  whether  the  lands  themselves  are  ancient  de- 
mesne, or  not,  but  only  whether  the  manor  be  so  or  not  ;(n)  for  an  acre  of 


{k)  F.  N.  B.  14,  D. ;  2  Inst.  5 12  ;  4  Inst.  269  ;  Lex  Man.  26  et  scq. ;  Hunt  v.  Burn,  1 
Salk.  57  ;  S.  C,  Holt,  60  ;  S.  C,  1  Com.  93. 

(/)  F.  N.  B.  16,  C;  sec  also  Hob.  188;  1  Brownl.  43;  Holdy  v.  Hodges,  1  Sid.  147; 
S.  C.  nom.  Holdaye  v.  Hodges,  1  Lev.  106. 

(m)  Kitcli.  192,  193 ;  Saunders  v.  Welch,  cited  1  Salk.  57. 

(n)  2  Burr.  1048. 


PRIVILEGED    COPYHOLDS.  485 

land  may  be  ancient  demesne,  though  the  manor  of  which  it  is  parcel  is  not 
so  ;(o)  and  if  the  question  be,  whether  lands  be  parcel  of  a  manor  which  is 
ancient  demesne,  this  shall  be  iiie^  per  pais. {p) 

925.  Tenants  of  these  lands  under  the  Crown  were  not  all  of  the  same 
order  or  degree.  Some  of  them  continued  for  a  long  time  ^jwre  villeins  de- 
pendent on  the  will  of  the  lord,  and  those  who  succeeded  them  in  their 
tenure  differed  but  in  some  few  points.  They  could  not  maintain  a  writ  of 
right  close  (since  abolished  by  the  3  &  4  Will.  4,  c.  27,  s.  36,  see  Dig.  p. 
iii.  tit.  Limitations)  nor  a  monstraverunt,  but  were  obliged  to  sue  by  plaint 
in  the  lord's  court.  Others  were  as  good  as  enfranchised  by  the  royal 
favour,  and  hold  their  lands  freely  by  the  grant  of  the  king,  being  only 
bound  in  respect  of  their  lands  to  perform  the  better  sort  of  services,  and 
those  determinate  and  certain,  as  to  plough  the  king's  land  for  so  many 
days,  or  to  supply  his  court  with  a  certain  quantity  of  provisions,  and 
*other  Slated  services,  which  have  been  changed  into  pecuniary  r#,^'j5-] 
rents.  The  estates  of  these  tenants  pass  by  surrender  or  deed  of  L  -' 
grant  or  bargain  and  sale.((j') 

2.  Privileges  of  the  Tenure  in  Ancient  Demesne. 

926.  Lord  Coke(r)  enumerates  six  privileges  enjoyed  by  tenants  in 
ancient  demesne ;  namely,  first,  not  to  be  impleaded  out  of  the  manor ; 
secondly,  to  be  exempt  from  juries  ;  thirdly,  to  be  exempt  from  tolls,  &c. ; 
fourthly,  to  be  free  of  taxes  and  talliages  by  Parliament;  fifthly,  not  to  be 
liable  to  contribute  to  the  expenses  of  knights  of  the  shire  ;  sixthly,  in  case 
of  being  distrained,  to  join  in  a  monstraverunt. 

In  the  first  place,  tenants  in  ancient  demesne  were  not  to  be  impleaded 
for  any  of  their  lands,  or  compelled  to  appear  in  any  court  out  of  the  manor, 
but  to  have  justice  administered  to  them  at  their  own  doors,  in  a  particular 
court  called  the  court  of  ancient  demesne,  by  a  pecuhar  process  denomi- 
nated a  petit  writ  of  right  close,  (now  abolished  by  the  3  &  4  W.  4,  c. 
27,  s.  36,  see  Dig.  p.  iii.  tit.  Limitations,)  directed  to  the  bailiff  of  the 
queen's  manors,  or  to  the  lord  of  the  manor,  if  it  be  in  the  hands  of  a  sub- 
ject.(r) 

But  it  must  appear  that  the  land  is  ancient  demesne,  for  if  a  fine  levied  in 
C.  P.  were  still  in  force,  the  lands  were  frank-fee  until  reversed,  and  the 
tenant  might,  therefore,  be  impleaded  at  common  law  ;  but  affidavit  that  the 
lands  are  reputed  ancient  demesne  is  sufficient  ;(s)  so,  the  land  must  not 
only  be  holden  of  the  manor,  being  ancient  demesne,  but  it  must  appear 
that  the  lessor  of  the  plaintiff  has  a  freehold,  for  lessee  of  a  term  cannot  sue 
there  •,(t)  so,  if  the  manor  and  demesnes  of  the  manor  are  in  dispute,  they 

(o)  1  Roll.  Abr.  321 ;  see  also  Bio.  Auncient  Demesne,  15  ;  F.  N.  B  14  ;  11  Co.  6. 

(p)  Kitch.  192,  193,  citing'  12  Ass.  18;  22  Ass.  45  ;  Hopkins  v.  Pace,  1  Show.  271 ; 
S.  C,  Comb.  183 ;  Hunt  v.  Burn,  1  Salk.  57;  S.  C.  Holt.  60 ;  S.  C,  1  Com.  93. 
(9)  Kitch.  158,  159.  194;  F.  N.  B.  228  ;  Co.  Cop.,  s.  32,  tr.  58  ;  4  Inst.  269. 
(r)  4  Inst.  269.  (s)  Barnes,  185. 

(0  Doe  V.  Roe,  2  Burr.  1046. 


486  crabb's  law  of   real  property. 

^       -,  must  *be  impleaded  at  common  law,  and  not  in  the  lord's  court, 
L         -'  otherwise  the  lord  would  be  judge  in  his  own  cause. (a;) 

927.  So,  tenants  in  ancient  demesne  cannot  be  impanelled  on  any  jury  at 
Westminster,  or  elsewhere,  in  any  court,  upon  any  inquest  or  trial  of  any 
cause  ;(»/)  and  they  may  have  a  writ  de  nonponendis  et  juratis,  against  the 
sheriff' or  anyone  who  has  return  of  writs,  and  if,  after  all,  the  sheriff  make 
a  return,  they  may  have  an  attachment  against  him  ;(2;)  but  ancient  demesne 
is  no  exemption  from  serving  the  office  of  constable,  (o) 

928.  So,  tenants  in  ancient  demesne  are  exempt  from  all  manner  of  tolls 
in  fairs  and  markets  for  all  things  concerning  husbandry  and  substance  ;(6) 
but  this  privilege  does  not  extend  to  him  who  is  a  merchant,  and  gets  his 
living  by  buying  and  selling,  but  it  is  annexed  to  the  person  in  respect  of 
the  land,  and  to  those  things  which  grow  and  are  the  produce  of  the 
lands  ;(c)  and  this  privilege  extends  as  well  to  tenants  who  hold  of  a  sub- 
ject as  of  the  queen  ;(f/)  and  so  it  extends  to  tenants  in  ancient  demesne, 
whether  they  hold  in  fee,  for  hfe,  or  years,  or  at  will;(e)  so,  to  the  lord  him- 
self.(/) 

929.  Again,  tenants  in  ancient  demesne  are  to  be  free  of  taxes  and  tal- 
P**,,^-|  liages  by  Parliaments,  unless  they  be  specially  *named,(i^)  and 
L  -^  regularly,  all  general  acts  of  Parliament  extend  to  ancient  demesne 
lands. (/i)  So,  they  were  not  to  contribute  to  the  expenses  of  knights  of 
Parliament ;(/»)  but  before  the  2  &  3  AV.  4,  c.  45,  they,  in  common  with 
ordinary  copyliolders,  did  not  enjoy  the  elective  franchise. (t) 

930.  Lastly,  if  tenants  in  ancient  demesne  be  severally  distrained  for 
other  services,  than  they  are  obliged  to  by  the  custom  of  the  manor,  they  may 
have  a  writ  of  monstraverunt  directed  to  the  lord,  commanding  him  not  to 
distrain  for  other  services  ;  and  if  he  will  distrain,  &,c.,  then  by  a  writ  direct- 
ed to  the  sheritr  he  may  command  him,  not  to  demand  or  distrain  for  other 
services  ;  and  if  he  still  persists,  then  he  may  raise  the  posse  comi/atns,  or 
command  the  neighbourhood  to  rescue  and  destroy  the  distress,  but  the 
usual  course  is,  that  if  after  the  writ  to  the  sheriff  the  lord  will  distrain,  then 
attachment  lies  against  him,  returnable  in  one  of  the  courts  at  Westminster, 
to  answer  the  contempt  •,{k)  so  they  all,  for  the  saving  of  charges,  may  join 
in  this  writ,  albeit,  they  be  several  tenants ;(/)  so,  this  writ  may  be  sued 

ix)  1  Salk.  56. 

(y)  F.  N.  B.  14,  F. ;  Bro.  Aunc.  Demn.,  pi.  42.  (2)  1  Co.  105. 

{a)  R.  V.  Bcttswort}!,  2  Show.  75  ;  S.  P.,  if  not  S.  C,  1  Vent.  344. 

(6)  Kitch.  194  ;  4  Inst.  269  ;  S.  P.,  Cox  v.  Barnslev,  Hob.  48  ;  Roll.  Abr.  321. 

(c)  F.  N.  B.  228,  D. ;  Ward  and  Knight's  case,  1  Leon.  232 ;  S.  C.  nom.  Ward  v. 
Knight,  Cro.  El.  227  ;  2  Inst.  221  ;  1  Roll.  Abr.  321. 

(f/)  Case  of  the  Town  of  Leicester  Toll,  2  Leon.  191. 

(e)  Bro.  Aunc.  Demesnes,  pi.  43 ;  Case  of  the  Town  of  Leicester  Toll,  2  Leon.  191 ;  1 
Roll.  Abr.  322 ;  Savery  v.  Smith,  2  Lutw.  114G. 

(/)  1  Roll.  Abr.  322,  citing  9  H.  6,  25  b. 

Cff)  4  Inst.  269.  (A)  Id.  270. 

(j)  Blackst.  Tr.  132  et  seq. 

[k)  F.  N.  B.  15  ;  and  see  Bac.  Abr.,  tit.  Ancient  Demesne,  (B.) 

CO  4  Inst.  269. 


PRIVILEGED    COPYHOLDS.  487 

generally,  without  showing  the  names  of  the  tenants  ;(wi)  hut  in  an  attach- 
ment against  the  lord,  the  tenants  suing  it  must  be  named,  and  those  only 
who  are  specially  named  in  the  writ  of  attachment  shall  recover  special 
damages. (71) 

If  frank-tenants,  and  those  by  base  tenure,  join  in  a  monstraverunt,  the 
writ  shall  abate  only  as  to  the  latter ;  so,  the  lord  shall  not  be  put  to  answer 
until  the  Court  be  certified  by  the  treasurer  and  chamberlain  of  the  Exche- 
quer, that  the  manor  is  ancient  demesne. {o'j 

*3.  How  ..Ancient  Demesne  may  become  Frank-fee.       [*718] 

931.  Lands  in  ancient  demesne  may  become  frank-fee  either  by  act  of  the 
queen,  act  of  the  tenant,  or  by  act  of  the  lord. 

If  land  which  is  ancient  demesne  comes  to  the  queen,  it  becom.es  frank- 
fee  ;(;j)  and  so  it  remains,  although  the  queen  grants  it  in  fee  or  for  life, 
with  or  without  rent  reserved  •,[q\  but  if  it  be  re-granted  by  the  queen,  to  be 
held  of  the  manor  again,  it  becomes  restored  to  ancient  demesne  ;(r)  so,  if 
the  queen  seised  the  land,  and  after  patent  repealed  grant  it  to  another  ;(*) 
so,  if  tenant  in  ancient  demesne  enfeoff  his  lord,  the  land  becomes  frank-fee; 
so,  if  the  tenancy  escheat  to  him,(/)  or  the  lord  disseise  the  tenant ;  so,  if  the 
lord  grants  the  services  of  the  tenant  to  another,  and  the  tenant  attorns  ;(/) 
but  if  the  lord  release  his  tenant  from  the  services  for  a  certain  time,  after 
the  time  expired  the  land  is  ancient  demesne  again. (m) 

932.  So,  before  the  abolition  of  fines  and  recoveries  by  the  3  &  4  W.  4, 
c.  74,  (see  Dig.  P.  ii.  tit.  Fines  and  Recoveries,)  if  a  fine  were  levied,  or  a 
recovery  suffered,  of  lands  in  ancient  demesne,  this  made  them  frank-fee  ;(a?) 
but  if  the  lord  were  not  a  party,  he  might  have  a  writ  of  deceit,  Avhich  writ, 
however,  is  abolished  by  the  3  &  4  W.  4,  c.  27.  (See  Dig.  P.  iii.  tit. 
Limitations.)  So,  a  termor  might  also  have  this  writ.(i/)  So,  an  action  on 
the  case,  in  the  nature  of  deceit,  would  have  lain  ;(z)  but  he  could  not  have 
a  scire  facias. [a^  If,  however,  the  lord  were  a  party,  then  the  lands 
become  frank-fee. (6) 

*4.   Court  of  Jlncicnt  Demesne.  [*719] 

933.  The  court  of  ancient  demense  is  a  court-baron,  and  not  a  court  of 
record  ;  in  respect  to  which  it  is  necessary  to  consider  the  constitution  of 
the  court;  the  jurisdiction  of  the  court  and  proceedings  therein;  how 
the  lord  shall  be  compelled  to  do  right ;  and  when  and  how  the  plea  shall 
be  removed. 

(m)  Plowd.  129  ;  F.  N.  B.  15,  D,  F.  (n)  F.  N.  B.  1 6,  B. 

(o)  Id.  16,  C.  (»)  1  Roll.  Abr.  324. 

(V)  F.  N.  B.  13,  C;  1  Roll.  Abr.  324.  (r)  Kitch.  194. 

(s)  1  Roll.  Abr.  325.  (M  4  Inst.  270. 

(u)  1  Roll.  Abr.  325. 

(X)  7  H.  4.  44,  cited  1  Roll.  Abr.  327  ;  10  Co.  50 ;  4  Inst.  270. 

(V)  1  Roll.  Abr.  327.  {z)  R.  v.  Hadlow,  2  Bl.  1170. 

(r/)  3  Lev.  419.  (/>)  1  Roll.  Abr.  324  ;  1  Finch,  Law,  15. 


488  crabb's  law   of   real   property. 

a.   Constitution  of  the  Court. 

934.  Though  the  writ  of  right  close,  before  its  abolition,  (see  ante,  §  926) 
were  directed  to  the  lord  or  bailiffs,  yet  the  suitors  are  the  judges  ;(c)  there- 
fore, pleading  a  suit  there  coram  A.  et  B.  hullavis,  et  C.  et  D.  sectafori- 
bus,  is  bad,(f/)  but  coram  A.  et  B.  ballivis  et  ficctatoribus  is  well,  because 
they  shall  be  intended  to  be  bailiffs  and  suitors  also.(f/)  So,  coram  stnechal- 
lo,  sectaforibus,  et  domcsmen  ;(c)  so,  the  suitors  there  may  act  by  attorney, 
although  they  are  the  judges. (/) 

b.  Jurisdiction  of  the  Court. 

935.  A  court  of  ancient  demesne  held  plea  by  writ  of  right  close,  in  all 
all  cases  where  a  tenant  in  tail  for  life,  or  in  dower  of  tenements  in 
ancient  demesne,  was  ousted  and  disseised;  and  the  party  ousted,  or 
his  heir,  might  have  such  writ  ;(§•)  and  after  the  delivery  of  the  writ,  the 
demandant  should  make  protestation  to  sue  in  form  of  an  assize  of  mort 
d'ancestor,  &c.,  all  which  writs  are  now  abolished.  (See  ante,  §  926.)  So, 
the  tenant  might  also  have  a  bill  of  fresh  force  in  this  court,  within  forty 
days  after  disseisin,  without  any  writ  sued  ;(A)  so,  he  might  have  an  ejcct- 

jj^  -.  mcnt,(i)  which  is  now  *the  only  real  action  for  trying  titles,  since 
L  J  the  abolition  of  real  actions  before  mentioned.  So,  if  the  lord  him- 
self ousted  his  tenant,  it  was  said  that  the  tenant  might  have  had  the  writ  of 
right  close,  or  an  action  at  common  law,  at  his  election  ;(/.:)  but  see  Baker 
V.  Wich,(/)  where  it  was  held,  that  the  manor,  and  the  demesnes  of  the 
manor,  are  impleadable  at  common  law,  and  not  in  the  lord's  court ;  for  then 
the  lord  would  be  judge  in  his  own  cause.  On  the  other  side,  ancient 
demesne  \iix\d,s  held  of  the  manor  are  impleadable  in  the  court  of  ancient 
demesne,  and  there  only  ;(/)  but  it  must  appear  that  the  lands  are  ancient 
demesne,  for  where  a  fine  had  been  levied  of  lands  in  ancient  demesne,  the 
land  was  frank-fee  until  the  fine  was  reversed,  and  the  tenant  might,  there- 
fore, be  impleaded  at  common  law,  for  the  privilege  of  ancient  demesne  being 
established  solely  for  the  benefit  of  lord  and  tenant,  it  has  been  held  that  they 
may  destroy  it  at  pleasure. (m) 

936.  If  tenants  in  ancient  demesne  arc  impleaded  elsewhere  than  in  the 
court  of  ancient  demesne,  they  may  plead  their  tenure  in  abatement  ;  and 
ancient  demesne  was  held  to  be  a  good  plea  in  all  cases  where  a  recovery 
could  make  his  land  frank-fee,  and  might,  therefore,  be  pleaded  in  sssizes, 
and  other  real  actions,  before  their  abolition. (;?)  See  ante,  §  926.  So,  it 
is  a  good  plea  wherever  the  interest  of  the  land  is  bound,  or  the  really  may 

(c)  Jentlcman's  case,  6  Co.  11 ;  S.  P.,  Abrahall  and  Nurse's  case,  3  Leon.  63. 

(</)  Lvitw.  713.  (p)  Id.  773.  (/)  1  Salk.341. 

is)  F.  N.R  11,  F. 

(A)  Kitcli.  188, 189  ;  F.  N.  B.  1.3,  E. ;  Bro.  Aunc,  Dcm.,  pi.  1,  citing  26  H.  8.  4. 

(j.)  Gybon  V.  Bowyer,  Moor,  451.  (k)  F.  N.  H.  12,  E. 

(i)  1  Salk.  56.  (m)  Finch,  Law,  15  ;  1  Roll.  Abr.  324  ;  1  Salk.  57. 

(n)  4  Inst.  270;  1  Roll.  Abr.  322,  citing  8  H.  6.  1. 


PRIVILEGED    COPYHOLDS.  489 

come  in  question  ;(o)  it  might,  therefore,  and  still  may,  be  pleaded  in  eject- 
ment ;(/j)  but  it  must,  in  this  case,  be  pleaded  within  the  first  four  days  of 
the  term,  this  being  a  dilatory  plea  •,{q)  and  it  was  in  one  case  denied, 
because  it  was  after  the  four  days,  being  %  plea  to  the  jurisdic-  p*«211 
tion  ;(r)  and,  for  other  similar  cases,  see  Marshall  v.  Allen, (s)  L 
Roberts  v.  Foster,(f)  Wroot  v.  Fenor.(i<) 

937.  So,  the  plea  must  be  with  leave  of  the  Court,  and  on  affidavit  ;(w)  and 
the  affidavit  must  state  that  the  lands  in  question  are  held  of  the  manor, 
w^iich  is  ancient  demesne,  for  then  only  are  they  pleadable,  Hatch  v. 
Cannon  ;(x)  and  it  was  there  said,  that  an  affidavit  is  necessary  wherever 
you  plead  to  the  jurisdiction  of  the  Court,  and,  for  anything  that  appears,  the 
lands  may  be  parcel  of  the  manor  which  is  ancient  demesne,  and  such 
lands  are  pleadable  at  common  lav/  ;{y)  for  the  jurisdiction  of  the  lord's 
court  in  ancient  demesne  extends  only  to  lands  holden  of  the  manor,  and 
not  to  copyhold,  which  is  parcel  of  the  manor.(z)  So,  the  affidavit  must 
state,  not  only  that  the  lands  are  holden  in  ancient  demesne  and  holden  of 
the  manor,  but  also  that  the  manor  is  holden  in  ancient  demesne,  and  that 
there  are  suitors  in  the  court  ;(a)  so,  likewise,  that  the  lessor  of  the  plaintiff 
has  a  freehold  interest ;  for  the  lessee  of  a  term  cannot  sue  there, (a)  but 
the  plea  may  be  filed  de  bene  esse,  where  the  four  days  would  have  expired 
before  cause  could  be  shewn  and  the  plea  pleaded. (6) 

So,  it  has  been  held,  that  the  plea  of  ancient  demesne  is  good,  without 
defence,  North  v.  Hoyle,(c)  Smith  v.  Frampton,(rf)  Farrers  v.  JMiller  ;(e) 
but  see  S.  C.  nom.  Ferrer  v.  Miller,(/)  and  S.  C.  nom.  Ferrers  v. 
Miller,(o-)  where  *Holt,  C.  J.,  against  three  judges,  held  that  the  r-^.mcj2l 
plaintiff  was  not  obliged  to  take  the  plea  without  the  defence.  ^         -« 

938.  Tn  replevin  ancient  demesne  is  a  good  plea,  because  by  intendment 
the  freehold  may  come  in  question  ;(/i)  so,  in  account  against  guardian  in 
socage,  or  bailiff  of  a  manor  ;(i)  so,  in  a  writ  of  admeasurement  of  pas- 
ture •,{k\  so,  in  a  writ  of  partition  before  its  abolition  (see  ante,  §  926), (Z) 
the  land  being  collaterally,  though  not  directly  in  question. 

(o)  Alden's  case,  5  Co.  10.5  ;  S.  C.,nom.  Smith  v.  Arden,  Cro.  EI.  826;  2  Andr.  178  ;  S. 
P.,  Cox  V.  Barnsley,  Hob.  47. 

(p)  Gybon  v.  Bowyer,  Moor,  451.  {q)  Smith  v.  Roe,  Barnes,  331. 

(;•)  Pease  v.  Badtitle,  336. 

(s)  Latch,  83  ;  S.  C,  Cro.  Car.  9  ;  S.  Pahii.  406.  (t)  Barnes, 

(m)  8  T.  R.  474. 

{v)  Rust  V.  Roe,  2  Burr.  1046  ;  see  also  Smith  v.  Roe,  Barnes,  331 ;  Hatch  v.  Cannon, 
3  Wils.  51,  overruling  Goodright  v.  Shuffill,  2  Ld.  Raym.  1418. 

{x)  3  Wils.  51.  {y)   Hatch  v.  Cannon,  sup. 

(2)  Brittle  v.  Dade,  1  Salk.  185 ;  S.  C.  nom.  Brittel  v.  Bade,  1  Ld.  Raym.  43. 

(a)  Rust  V.  Roe,  sup. 

(/>)  Morton  v.  Roe,  10  East,  523. 

(c)  3  Lev.  182.  (r/)  Id.  405. 

(e)  1  Show.  380.  (/)  1  Salk.  217. 

{s)  Carth.  220. 

(A)  Bro.  Amic.  Dem.,  pi.  4,  citing  40  E.  3 ;  F.  N.  B.  11,  L.;  Alden's  case,  5  Co.  105, 
d;  Cox  V.  Barnsley,  Hob.  47  ;  Owen's  case,  Ow.  24 ;  Godb.  64,  ca.  70. 

(t)  4  Inst.  270. 

{k)  Bro.  Aunc.  Dem.,  pi,  20.  37,  citing  8  H.  6,  34 ;  1  Roll.  Abr.  322. 

(/)  Grace  v.  Grace,  1  Roll.  Abr.  322  ;  Pont  v.  Pont,  T.  Raym.  249. 


490  crabb's   law   of   real   property. 

939.  Ancient  demesne  is  not  a  good  plea  in  actions  merely  personal,  as 
debt  upon  a  lease,  trespass  quare  clausum  fregit,  &c. ;  so,  in  trespass 
contra  pacem,  though  the  realty  come  in  debate,  yet  ancient  demesne  is  no 
plea,  for  this  is  at  the  suit  of  the  queen,  and  for  the  good  of  the  common- 
wealth ;(m)  so,  in  a  quare  impedit  ancient  demesne  is  no  plea,  for  if  it 
should  be  granted,  it  would  be  a  failure  of  right,  for  in  the  court  of  ancient 
demesne  they  cannot  grant  a  writ  to  the  bishop  ;(n)  so,  in  a  writ  of  waste 
before  its  abolition,  (see  ante,  §  936,)  ancient  demesne  was  no  plea,  because 
in  ancient  demesne  they  could,  upon  the  return  of  the  distress,  not  award  a 
writ  to  inquire  of  waste,  according  to  the  statute,  for  the  sheriff  ought  by 
the  statute  to  go  in  person,  which  could  not  be  supplied  by  their  officer,  and 
so  there  would  be  a  failure  of  right, (o) 

0.  How  the  Lord  shall  be  compellable  to  do  right. 

P*~oo-i  940.  If  the  lord  will  not  hold  his  court,  the  tenant  in  ^ancient 
«-  '  -'  demesne  may  have  a  writ  out  of  Chancery,  commanding  him  to 
hold  it,  and  to  proceed  according  to  law  \[p\  and  if  then  he  will  not  hold  it, 
he  may  have  an  attachment  returnable  in  Q,.  B.  or  C.  P.,  and  shall  recover 
his  damages  ;(/;)  so,  he  may  have  a  writ  to  the  lord,  commanding  him  to 
do  right,  and  upon  that  an  alias  pluries  and  attachment, (;})  or  a  writ  to  the 
sheriff,  commanding  him  to  take  four  knights,  and  to  go  to  the  lord's  court, 
and  see  that  right  be  done  ;(/j)  so,  there  may  be  a  writ  to  the  suitors  to  pro- 
ceed to  execution  upon  the  judgment  there  ;((7)  and  they  cannot  in  that  case 
return  that  it  is  frank-fee,  for  the  jurisdiction  is  admitted  by  the  appearance, 
and  the  plea  of  the  defendant  there  ',{q'\  and  if  it  be  frank-fee,  the  suitors 
are  not  trespassers,  where  upon  a  writ  to  them  they  award  execution  ;(y) 
otherwise,  if  the  land  be  frank-fee,  and  they  award  execution  without  such 
writ.((/) 

4.  Hoiv  the  Plea  shall  be  removed. 


941.  The  demandant  in  ancient  demesne  cannot  remove  the  plea  out  of 
the  court  there  for  any  cause  ;(r)  but  the  tenant  may  remove  it  for  any  of 
the  causes  which  make  it  frank-fee,  (see  ante,  §  931), (r)  but  he  ought  to' 
prove  it  to  be  frank-fee  when  it  is  removed,  otherwise  it  shall  be  re- 
manded ;(s)  so,  he  may  remove  the  plea  if  there  be  no  other  but  one  suitor, 
for  that  the  suitors  are  judges,  and  therefore  the  demandant  must  sue  at 
common  law,  otherwise  there  would  be  a  failure  of  justice  ;(f)  so,  for 
default  of  trial  there,  as  if  the  defendant  pleads  a  foreign  plea,  a  super' 

(m)  Smith  V.  Ardcn,  Cro.  El.  826 ;  Cox  v.  Barnslcy,  Hob.  47  ;  1  Roll.  Abr.  322. 

(71)  Cox  V.  Barnsley,  Hob.  48  ;  1  Roll.  Abr.  322. 

(0)  2  Inst.  306  ;  4  Inst.  270  ;  Cox  v.  Barnslcy,  Hob.  47. 

(p)  F.  N.  B.  12,  D.  (o)  Moor,  451. 

(r)  F.  N.  B.  13,  B.;  4  Inst.  269. 

(s)  F.  N.  B.  13,  C. 

(0  4  Inst.  470;  sed  quaere,  F.  N.  B.  13,  C. 


PRIVILEGED     COPY  It  OLDS.  491 

scdeas  goes  to  the  lord  of  an  ande^it  demesne  to  surcease  ;(?<)  so,  if  he 
plead  bastardy,  for  the  court  there  cannot  write  to  the  bishop. (a?) 

*If  the  lord  in  ancient  demesne  proceed  after  the  plea  removed  r-^.^^Al 
by  recordari,  a  certiorari  goes  to  C.  P.,  to  certify  the  tenor  of  the  L  J 
record  removed  into  the  Chancery,  and  upon  that  an  attachment  lies  against 
the  lord  to  answer  to  the  queen  and  the  party  in  C.  P.  ;(«/)  so,  if  the  lord 
proceed  after  a  supersedeas. (^z^j 

Cu)  F.  N.  B.  13,  C.  (x)  Reg.  9,  a. 

(y)  F.  N.  B.  13,  H.  (z)  Id.  14,  A. 


END    OF    VOL.     I. 


LAW    LIBRARY 

OF 
LOS  ANGELES  COUNTY 


UMVEUSITY'OF  CAUFOpxitx, 


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